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CRIME 

IN ITS RELATIONS TO 

SOCIAL PROGRESS 



BY 



ARTHUR CLEVELAND HALL, Ph.D. 

Fellow in Sociology, Columbia, 1894-95. 



Oh, yet we twist that somehow good 
Will be the final goal of ill" 

Tennyson— In Memoriam 




Ntw IJork 
THE COLUMBIA UNIVERSITY PRESS 

THE MACMILLAN COMPANY, AGENTS 

London: P. S. King & Son 

1902 



f 



ff 



COPYRIGHT, 1902 
By the Columbia Studies in History, Economics and Public Law 



/ J > 



9 y 



STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 

EDITED BY THE FACULTY OF POLITICAL SCIENCE OF 
COLUMBIA UNIVERSITY 



Volume XV 



THE AUTHOR'S PREFACE. 



THE first few pages of this book seem very pessimistic, but 
in truth the author's view is a broadly optimistic one, grow- 
ing more so with the progress of his work, which offers, to 
those who read, an answer to this strange enigma, by reveal- 
ing the social good which rests within the growing mass of 
crime. The minds of many men to-day are filled with anx- 
ious fears and forebodings because of this increasing weight 
of evil, the fruit of our higher civilization ; for they fail to 
trace within the gloom those strong forces working out so- 
cial betterment by means of this very increase of crime 
which they so deplore. 

Human good and human evil are many-sided — not fixed 
and unchanging, but largely relative — and compounded in 
ever-varying proportions the one with the other. Often, 
very often, evil is but good out of its proper time and place. 
Things must be looked at in their historic setting, if we 
would rightly value them. Only by a very wide, impersonal 
view — a long perspective — in which the individual and his 
immediate needs are merged in the continued welfare of the 
human race, can we see, " as through a glass, darkly," the 
vast outlines of eternal good, can we grow into that high- 
hearted and grandly reasonable hope that 

" There shall never be one lost good ! What was, shall live as before; 
The evil is null, is naught, is silence implying sound; 
What was good, shall be good, with, for evil, so much good more; 
On the earth the broken arcs; in the heaven, a perfect round." 

(Browning.) Abt Vogler. 

A student of these problems of crime for many years, the 

(v) 



vi The Author's Preface 

author was in charge of the Bureau of Charities and Correc- 
tion during the latter half of the Columbian Exposition, 
Chicago, 1893. The following spring he delivered a course 
of lectures on Criminology before graduate students of Johns 
Hopkins University, and in 1894-95 was Fellow in Sociology 
at Columbia University. Since July, 1895, tne thoughts 
presented in this book have been slowly developing and 
growing clear before his mind, and the last three years have 
been devoted to a critical examination of the evidence — his- 
torical, legal and statistical — throwing light upon the sub- 
ject. 

Careful study of the valuable writings of the criminal an- 
thropologists has strengthened the conviction that, in call- 
ing attention so forcibly to the physiological and psycholog- 
ical study of individual degeneration as the essential fact in 
criminology, we have been drawn away from the perception of 
another side of truth, perhaps equally important, namely: 
the evolutionary function and usefulness of crime and pun- 
ishment. Crime is in large part a social product, increasing 
with the growth of knowledge, intelligence and social moral- 
ity — increasing because of this growth. The persistent en- 
largement of the field of crime is a necessity for all truly 
progressive nations. Many acts formerly harmless, or so- 
cially beneficial, become harmful as civilization grows higher 
and more complex. An increase of crime, however, does not 
mean necessarily an increase of anti-social conduct. In fact, 
anti-social acts may have diminished while crime has grown 
larger in amount, or may have increased while crime has 
decreased. Society's conflict with its criminal members, 
due to the enforcement of new social prohibitions, is one of 
the chief means by which humanity, in every age, has risen 
from a lower to a higher plane of civilization, from almost 
uncontrolled license, selfishness and hate, into true liberty, 
love and mutual helpfulness. 



The Author* *s Preface vii 

The author desires to thank Professor Edwin R. A. Selig- 
man and other professors of Columbia University who have 
aided him in the prosecution of his work ; but especially is he 
indebted to Professor Franklin H. Giddings for criticism of 
his manuscript and proof sheets, and to Miss Katharine G. 
Spear for valuable assistance in proof reading, and for the 
making of the index. 

A. C. H. 

New York, January, 1902. 



INTRODUCTION. 



OUR theories of crime and our conception of the criminal 
have undergone profound modification since our notions of 
mankind were transformed by the researches of Mr. Darwin. 
Crime is still thought of by the uneducated as merely a 
black kind of wickedness, and by lawyers as merely a punish- 
able act. But scientific students of mind and of society have 
learned that wicked and punishable acts are correlated with 
anthropological and physiological facts, and with social and 
historical conditions, that are deserving of investigation. 
The criminal is still thought of by a majority of law-abiding 
persons as an " evil-doer," who sins deliberately, because he 
"likes to"; who deserves the vengeance of man in this 
present world and the wrath of God in a world to come. 
But to the scientifically trained mind the criminal is a char- 
acter who should be examined with painstaking care and by 
precise methods, to determine how far he is responsible. 
He may be an atavistic variant from normal mankind, and 
devoid of moral sense, a dangerous creature, to be restrained 
as a wild beast might be, but not to be punished by rational 
beings. He may be a weak or passionate person, not evil in 
disposition but liable to go wrong under stress of temptation 
or excitement. Or, finally, he may be nothing more nor less 
than a "professional" — a man who has gone into crime as a 
profitable business, exactly as he might have gone into 
politics or promoting. To those who have become familiar 
with these distinctions, it seems quite clear that professional 

(ix) 



x Introduction 

criminals only are likely to be restrained by punishment, 
and that the "instinctive" and "occasional" criminals must 
be dealt with by other methods : equally clear that a sen- 
timental charity towards professional criminals, who ought 
to be punished with such severity as would make their busi- 
ness unprofitable, must result in an increase of crime. 

The methods of the anthropologists, however, are not the 
only ones that are suggested by an evolutionist philosophy, 
as applicable to the study of crime and the criminal. An 
undiscriminating notion of the criminal as in every instance 
a wicked man, or as in every instance a defective and irre- 
sponsible man, leading, as it must, to an undiscriminating 
policy of punishment or of mercy, is not the only cause affect- 
ing the amount of crime in the community. Granting the 
distinctions that have here been named, crime may increase 
or decrease in amount without any change in law or in pol- 
icy. Changing social conditions determine the birth-rates of. 
the atavistic and irresponsible ; of the violent, the weak, the 
unscrupulous. Changing social conditions determine also 
the range of temptation and of opportunity. Crime and 
criminals, therefore, must be studied by the methods of the 
statistician, as well as by those of the anthropologist, if we 
are to obtain an adequate knowledge of the causes that 
control human well-being. 

Even these methods, however, do not exhaust the possi- 
bilities of investigation offered by the phenomena of crime. 
Not every wicked act, not every injurious act, is a crime 
Certain acts (and negligences) society through its law-mak- 
ing authority formally prohibits, and through its executive 
authority solemnly punishes. These acts, which the state 
thus authoritatively brands, and no others, are crimes. 

It is obvious therefore that crime may increase or diminish 
from age to age without any change whatever in the number 
of wrongful acts. Deeds which at one time are tolerated or 



Introduction xi 

even approved, at another time may be denounced and pun- 
ished. Any change in the attitude of society toward human 
conduct must consequently make a corresponding change in 
the statistics of crime. It is well within the limits of possi- 
bility that a community might become, generation by gener- 
ation, more moral, and produce increasing crops of the 
" peaceable fruits of righteousness," and yet show in its 
moral statistics a steady increase of crime, in excess of the 
increase of population. 

This is a phase of the phenomena of crime which is un- 
familiar to the general reader and to the average voter, and 
which, indeed, is understood only by those few persons 
among the well-informed who have devoted themselves to 
studies in comparative jurisprudence or in the history of 
legislation. It is this phase especially that Dr. Hall has in- 
vestigated, and has set forth in the present volume with a 
thoroughness which, I think, has not characterized any pre- 
ceding study of the relation of crime to civilization. 

A moment's reflection will satisfy an intelligent reader 
that, by its very nature, civilization must now and then 
increase the sum total of crime. Civilization devises, ex- 
tends and improves a moral order among men, and this order 
takes the form of legality. One after another the acts and 
negligences which civilized men regard as evil are branded, 
prohibited and punished as "crimes." Sometimes in a 
moment of mistaken zeal, acts that a sober second thought 
declares to be innocent in themselves, and harmless to man- 
kind, are so stigmatized. Yet, on the whole, this process of 
converting immoralities into positive crimes is one of the 
most powerful means by which society in the long run elim- 
inates the socially unfit, and gives an advantage in the 
struggle for existence to the thoughtful, the considerate, the 
far-seeing, the compassionate; so lifting its members to 
higher planes of character and of conduct. While it would 



xii Introduction 

be absurd to say that civilization is promoted by an increase 
of crime, if by "increase" we mean a multiplication of evil 
deeds, (the legal definition and the punishment of crime 
remaining the same) it is yet perfectly true to say that 
civilization in the long run is promoted by that "increase" 
of crime which is caused by an extension of the category of 
acts branded by society as criminal, the total number of evil 
deeds remaining unchanged. 

I have some fear that Dr. Hall in these pages has not 
always been sufficiently careful to emphasize the distinction 
that I have just made. The attentive reader, however, will 
have no difficulty in discovering that Dr. Hall is not trying 
to demonstrate anything so absurd as a beneficial reaction 
of harmful deeds. And I am sure that those who examine 
the book as a study of results attributable to the long his- 
torical process of extending the category, "crime," over larger 
and larger areas within the field of socially injurious conduct, 
will find it a positive contribution to our present knowledge 
of this immensely important subject. 

Franklin H. Giddings. 

Columbia University. 



TABLK OF CONTENTS 



PAGE 

Author's Preface v 

Introduction, by Professor Franklin H. Gid dings ix 

CHAPTER I 

The Evolutionary Function and Usefulness of Crime 
and Punishment. 

Modes of evolution I 

Crude natural selection and intelligent social selection 3 

The production of the criminal one of the saving processes of nature 5 

Primitive democracy and the barbarian codes . . . t . . . 6 

The meaning and definition of crime - 10 

Crime includes misdemeanors 15 

The distinction between tort, crime and sin 16 

The social standard of right action determines what conduct shall be 

criminal 20 

CHAPTER II 
Social Punishment among Animals. 

Are animals ever rightly termed criminals ? 24 

Punishments among monkeys, apes, elephants and wild cattle, ants and 

the more intelligent bird communities 24 

For conduct most destructive of the social life 30 

Theory of social reflex-action 32 

Animals do not know why they punish 32 

Criminal law deep rooted in the imperative necessity for social self-preser- 
vation 35 

CHAPTER III 
Crime Among Savages. 

The fundamental problem of every human society 38 

Head-strong individualism and three powerful socializing instincts 39 

The three great primitive crimes : treason, incest, evil-witchcraft 41 

No idea of moral guilt originally connected with them 42 

( xiii ) 



xiv Contents 

PAGE 

A social standard of right action everywhere exists 46 

Measurements of the antiquity of a crime 49 

Primitive democracy and the strength of ancient custom 51 

Horror of crime among savages and the passionate vengeance inflicted 57 

The coming of the king and danger of too great tameness 61 

The progressive social equilibrium and crime as the price of growth 62 

CHAPTER IV 
Savage Races in Australia, America, Asia and Africa. 

Evidences of crime and social punishment all around the earth 65 

Lowest savage hordes have fewest crimes, but both criminals and forms of 

crime increase with higher social development 68 

North and South Americans 78 

Asiatic Races 89 

African Peoples 100 

Ancient Peruvians, Mexicans and Central Americans 107 

Three great torts 112 

CHAPTER V 
The European Aryans. 

Customs of the primitive Aryans 115 

Crime among the early Romans, Greeks, Slavs, Celts and Teutons .... 118 

CHAPTER VI 
The Anglo-Saxons in England. 

Legal customs and courts of justice 1 26 

Evolution of the tort 129 

Nation building through the might of king and Church ". 130 

The extension of the king's peace and change of torts into crimes 132 

The power of the Church and the punishment of sins as crimes 134 

Wise King Alfred and education through social punishment 137 

The " good old laws " and their development 139 

CHAPTER VII 
England under Normans and Plantagenets. 

National unity and the usefulness of despotism 146 

William the Conqueror and the " Lion of Justice " 148 

Social anarchy and the decrease of crime 151 

Beginning of the " Reign of Law " 153 

Reserved pleas of the crown and new forms of crime 158 

The bold, new scheme of justice 161 



Contents xv 

PAGB 

Royal power enlarged and law unified through the multiplication of opposing 

crimes and criminals , 165 

The forest laws I/O 

Greater peace but more crime in Norman than in Anglo-Saxon England. ... 172 

CHAPTER VIII 
Parliamentary Government and the New Feudalism. 

The trial and failure of a great constitutional experiment 177 

General rottenness of the age 181 

An immature House of Commons versus a reactionary nobility 184 

The triumph of armed anarchy and fewness of the nation's criminals 186 

London in the Middle Ages 189 

CHAPTER IX 
Tudor England. 

A despotic monarchy supported by the people r 195 

The crushing of the anarchic nobility by the Court of Star Chamber 200 

The English Reformation, and treason laws protecting the religious and 

political development , 204 

New forms of crime: Forgery, perjury, political libel and attempts to com- • 

mit crimes 209 

The first statute punishing fraudulent bankruptcy 211 

Curbing of the Ecclesiastical Courts 213 

The severity of the new laws and the prevalence of serious crime 217 

How murder became a crime for all men 220 

Was there more crime, or less, in Tudor than in modern England? 222 

CHAPTER X 
England under the Stuarts. 

Constitutional liberty vs. the divine right of kings 227 

Seventeenth century criminals mainly political and religious 230 

Royal courts of extraordinary jurisdiction 231 

Religious intolerance of both parties 235 

Military despotism of Cromwell 239 

The beginnings of freedom of conscience 240 

The common law courts 241 

Utter indifference of the age to acts of violence against the person 246 

CHAPTER XI 

Modern England. 

An era of domestic peace and material prosperity, but abundant crime 49 

The death penalty for even petty offences inimical to the new social life. . 254 



xvi Contents 

PAGE 

The humanitarian reaction against excessive punishments, and the decriminal- 
izing of crimes 258 

Great development of trade and manufactures, and the birth of opposing 

crimes 262 

The abuses of the factory system and their remedy by statute law 268 

The Compulsory Education Act and the modern multiplication of criminals . 270 

The injury to one regarded more and more as a wrong to all 272 

Increasing crime may be a sign of social betterment 276 

CHAPTER XII 
Has Crime Increased During the Nineteenth Century? 

The age of rapid progress, science and democracy 279 

Records of the criminal classes in the great European civilizations ......... 280 

Growth of crime greater than the growth of population 281 

England 281 

France 283 

Austria 293 

Italy 296 

Germany 299 

In Spain alone criminality shows practically no increase 299 

The relation between crime, industrial efficiency and education 300 

CHAPTER XIII 
Is Punishment Powerless against Crime ? 

Are we degenerating ? 302 

Decreasing totals of serious crime, in England, Ireland, France, Austria, 

Italy and Scotland 304 

But have not some of the most dangerous crimes increased? 311 

The wave of industrialism in Germany and the resulting wave of crime 315 

Murder and homicide : the crimes of backward races 320 

The evolution of a crime and its educational advantages 324 

Serious crimes against property 326 

CHAPTER XIV 

The Trend of Crime in Modern Times. A Brightening Outlook. 

Sensitiveness of modern life and the rapid multiplying of prohibitions 331 

Is the individual losing his liberty ? 338 

True freedom by the might of law 338 

The success of education through social punishment 340 

Legislation of social guardianship 345 



Contents xvii 

PAGE 

Lessons to be learned from Spain 347 

Industrial Democracy and the preponderance of English crime 357 

Courts of summary jurisdiction 360 

Misdemeanors in 1836 and 1896 : 366 

The relation of the growth of crime to the progressiveness of England's 

counties 370 

The age of maximum criminality 374 

CHAPTER XV 

An Ethical Theory of Crime. 

The sifting processes of natural selection 376 

Fundamental laws of growth, their antagonisms, and the resulting criminal 

class ■• 377 

Progress always means greater strength 379 

The most successful forms of life are gregarious 380 

Intelligent social selection displacing crude physical selection 381 

Probable beginnings of morality 383 

The criminal is the rebellious social laggard 385 

Civilization through enforcement of new social prohibitions 387 

Nature's limitations to the rule of selfishness 390 

The survival of the fittest among nations 392 

Crime is the reaction against pressure toward a higher altruism 393 

Increasing crime and the goal of social welfare 394 



APPENDIX I 
Special forms of English crime 396 

APPENDIX II 
Statistics of England and Wales 402 



CHAPTER I 

THE EVOLUTIONARY FUNCTION AND USEFULNESS OF CRIME 
AND PUNISHMENT. 

Each human community, in every age, is busy moulding 
its individual members into conformity with its own type — 
into a closer resemblance to the social ideal. The American 
is different from the Englishman and both are unlike the 
German. The French type is markedly distinct and sepa- 
rate from both the Italian and the Spanish. A social educa- 
tion environs us from the cradle to the grave — a pressure to 
be this kind of man and not to be this other and antago- 
nistic kind. If, for the most part, we are scarcely conscious 
of this moulding influence, it is because we are so used to it, 
and because we are ourselves scions of the national stock, 
inheriting these national traits and tendencies from our 
remote ancestors. Settle in a foreign land, and the pressure 
soon becomes disagreeably, perhaps painfully, apparent; 
and you must conform, in large measure, to these unwonted 
customs, rules and ways of doing things, if you would be 
happy and prosperous in the new environment. 

In the furtherance of this social education, two great 
natural forces — strong, ever-present, social tendencies — are 
made use of, encouraged, trained, by the social group. One 
is the natural admiration and imitation of strong men, 
largely resembling their comrades, only somewhat better 
representatives of the developing social type ; and the 
second is the instinctive abhorrence and persecution of indi- 
viduals unlike their fellows — anti-social variations — danger- 
ously hostile to the common weal. These two great 



2 Social Education 

socializing tendencies, or forces, work together in absolute 
harmony ; and along the line of progress they induce, social 
pressure becomes more and more strongly developed, with 
increasing social evolution. This pressure is partly con- 
scious and partly unconscious, in both directions : of praise 
or blame, of honor or persecution. The limits of the field 
of crime are largely coterminous with the extent of conscious 
persecution and punishment by the social group for wrongs 
against itself, and are continually being extended with the 
progress of civilization. 

The creation of a new crime (that is, the branding by so- 
ciety of some form of conduct as criminal) always implies 
social punishment — a punishment enforced to raise the com- 
munity to a higher plane of life, a nearer approach toward 
the social ideal. A new form of crime means either a step 
forward or a step backward for the nation choosing it. 
Wisely chosen, it is an active force driving man upward to 
a better, more truly social, stage of civilization ; but the 
nation that persists in choosing its crimes wrongly is on the 
high road to degeneration and decay. Crime is to the body 
social much what pain is to the individual. Pain is the 
obverse of the shield of pleasure, and without the existence 
of pain there is no pleasure possible ; without increasing pain 
there is no growth of higher pleasures. So, also, crime is 
the obverse of the shield of social good, and without in- 
creasing crime, there is probably no growth in social good- 
ness — or, in other words, no development of the nation into 
the fullness of its strength, happiness and usefulness. It will 
cease to be a living force in the evolution of a higher, world 
civilization, and will become stationary, like the Chinese, or 
degenerate, like the American Indian. 

Crime, therefore, is an inevitable social evil, the dark side 
of the shield of human progress. The most civilized and 
progressive states have the most crime. It is a social pro- 



Usefulness of Crime and Punishment 3 

duct, Increasing with the growth of knowledge, intelligence 
and social morality — with all that is summed up in the 
words higher civilization. 1 The increase of crime largely 
takes the direction of acts in opposition to new social prohi- 
bitions. These prohibitions are neither accidental nor 
whimsical, but are inevitable consequences of the increasing 
complexity of life. In general, new crime follows lines of 
greatest resistance to the new life of society. 

This book is an attempt to study some of the relations of 
crime to social progress ; chiefly two great phases of the 
subject; namely: The evolutionary function and usefulness 
of crime and punishment; and, Crime as a social product, 
increasing with the increase of social prohibitions. 

Nature's great task, throughout the ages, seems to have 
been the elevation of the individual, at the expense of his 
powers of reproduction — individuation versus procreation — 
resulting in the persistent rise in value of the individual life, 
as measured in terms of size, strength and activity of body 
and of brain. The forces preservative of race are two, 
writes Herbert Spencer, the power to maintain the indi- 
vidual — the power to generate the species. These vary in- 
versely — as one decreases the other increases. 2 The evolu- 
tion of larger, stronger, more highly developed forms of life 
is always accompanied by the same phenomenon, a de- 
creasing birth rate. The minutest organisms multiply in 
their millions ; the small compound types next above them 
in their thousands, while larger and more compound types 

1 There is scarcely a state in the American Union for which the census statistics 
do not show a large, and for the most part, progressive increase in the number of 
criminals (i. e. prisoners) in proportion to population, since 1 850. The average 
numbers for these five census periods are: For Massachusetts, 1,899 prisoners 
per i,coo,ooo population; for New York, 1,378; Maryland, 993; Missouri, 689; 
Arkansas, 651; Mississippi, 551; Utah (4 last census periods), 529; New Mexico 
(4 last census periods), 510. 

2 See Principles of Biology, II., 401. 



4 Lowest Forms of Life 

multiply but in their hundreds or their tens, and the largest 
and most highly developed types only by twos or units. 1 
Lowest organisms are marvelously prolific. The shallow 
seas of the Paleozoic age swarmed with minute life, which 
left its history written in the fossils of the hills, in the coral 
reefs of ocean, in chalk cliffs and silicious deposits every- 
where, and in " the summits of great mountain ranges in 
Europe, Africa and India," formed of tiny shells of animals 
(known as numulites) which lived and died and helped to 
build our earth, during those early ages. 2 Undeveloped life is 
almost completely dependent upon its physical environment. 
The lower the organism the smaller its ability to contend 
with external dangers, and great fertility is absolutely nec- 
essary to preserve the species from destruction. Evolution- 
ary forces act upon these lowly forms of life mainly from the 
outside, upon whole groups, rather than from within the group, 
upon its members singly. 3 The development produced by 
such means is enormously expensive. Nature seems to 
squander life, holding it of little worth. 

" A thousand types are in the hills." 
During the Mesozoic, or Reptilian age, natural selection 
was working along a low plain of individual self-interest; 
dominance was the reward of great size and enormous phys- 
ical strength. But in united effort there is greater power 
than any gigantic brute can possess, and social life, with its 
mutual helpfulness against enemies and stimulation of mental 

1 See Principles of Biology, II., 426-7. 2 Mitchell, p. 47. 

3 A numerically large group of these microscopic organisms would occupy a 
very small space on the surface of our earth, and their environment would be 
practically the same for all individuals : that is, the forces acting upon them for 
good or evil would be in general the same throughout the entire group; and, 
being so very plastic under external influences, they would all develop in much 
the same way, until success or destruction came to the entire band. Another 
similar group, a little removed in space, might have a different set of forces acting 
upon it, have its individual units differently developed and perhaps succeed 
where the first group failed. 



Usefulness of Crime and Punishment 5 

development, become the prime requisite for success in the 
struggle for existence ; the great means to the attainment of 
a higher, more unselfish life. 

After some mental activity has been aroused within the 
social group, there is, as it were, an effort of nature to pro- 
mote upward growth by a less wasteful process, using the 
awakened individual intelligence, combined with the in- 
herited social instinct, to induce evolution from within the 
group, by encouraging useful variation from the average — 
thus producing the leader — and punishing harmful variation, 
thus ultimately converting the mere malefactor into the 
criminal. Social pressure from within the group unites with 
the pressure from without to uplift and socialize the individual. 
One of the most important forms of this inner pressure is 
called among men criminal prosecution and punishment. 

A social group is fundamentally a kindred group. Its 
members feel a resemblance among themselves and a sense 
of safety and of pleasure develops. There is general like- 
ness with individual variation. The natural leaders are very 
like their fellows, being simply somewhat stronger exponents 
of the developing social type. Divergence from this type is 
disliked and antagonistic variation meets with conscious or 
unconscious persecution. And rightly so, for the social 
might stands as a shield before each and every member, pro- 
tecting him from the destruction his weakness must call 
down, if left unaided. In so doing, society makes itself, as it 
were, responsible to nature for the acts of all its members. 
The individual whose persistent conduct weakens the social 
bond, or injures the effectiveness of the social group, must 
be made powerless to harm ; for, since social life to a large 
extent prevents the immediate action of natural selection 
upon the individual, wise social selection must take its place, 
or destruction comes to all. 

This is the explanation of crime and of the necessity for 



6 The Rebellions Laggard 

its punishment. Individual variations, actively antagonistic 
to the prevalent social type, exist in all the higher social 
groups. Commonly they are social laggards, who have not 
kept pace with the average development toward the social 
ideal. The rebellious social laggard is the true criminal ; 
other laggards belong to the pauper class. Even the higher 
animal societies collectively punish the most dangerous anti- 
social acts. Much the same conduct with a few additions is 
punished by the lowest human societies now known upon the 
earth ; and, as social life attains to higher planes, more and 
more actions become socially harmful, are generally recog- 
nized as such, and added to the list of crimes — that is, the 
list of actions which society punishes as wrongs against itself, 
for the sake of the general welfare, for the preservation of 
the social life, for the elevation of the individual toward the 
ideal of the social type. 

Thus the production of crime and criminals is one of the 
saving processes of nature, substituting a lesser for a greater 
evil, promoting upward progress at a smaller cost. For if 
nature had not induced this increasingly severe social selec- 
tion and pressure within the group, toward the elevation of 
the individual and the improvement of the type, then that 
primitive and unreasoning form of pressure from physical 
forces without the group, which always persists, must have 
continued alone in operation, destroying countless individ- 
uals and groups, without, if we may so express it, the attempt 
to educate them into the true lines of their upward develop- 
ment. 

Ancient human society was organized upon the basis of 
kindred — blood relationship — and not upon the possession 
of a common territory. Now, the individual is the unit, and 
is responsible to the state alone. Then, the kindred was the 
unit, and a wide system of group responsibility prevailed. 1 
1 Hearn, p. 457; Maine, p. 126-7. 



Usefulness of Crime and Punishment J 

A man was responsible to his kindred, gens (or clan), his 
phratry, tribe and tribal confederacy, ij this last existed. 
Each of these groups was likewise responsible for the man, 
for each and every member. It suffered for his misdeeds 
and could be rewarded for his good actions. The minor 
groups were originally independent — not yet included in any 
larger and more complex social body — and possessed, or, 
we may almost say, were possessed by, a wild and ferocious 
justice, reeking itself in fierce spasms of social vengeance, 
" half punishment, half outrage," upon some hated member 
of the band. Few acts, however, were punished by the 
social groups, as such, and few acts were therefore crimes. 
Injuries to individuals were left to private revenge, and there 
were other harmful acts — sins — supposed to be punished by 
the gods. 

In gentile society, the household was the economic in- 
stitution. Its chief function was the obtaining of a food 
supply. The Gens, or clan, was a mutual protective associ- 
ation, for help, defence and redress of grievances. Its 
function may be called judicial protective. 1 The Phratry, 
((pparpta — brotherhood), was formed by a union of related 
gentes. It was the chief religious institution and had also 
social and judicial protective functions. 2 The Tribe or 
Tribal Confederacy, was primarily a military institution, 
standing for the unity and might of the gentile people. 3 

Each one of these social groups possessed judicial and 
penal authority, by right of ancestral, immemorial custom. 
Yet, in the most primitive legal codes which have come 
down to us, the evidence for such authority is very scanty. 
Why is this ? Early Germanic codes of customary law embody 
but a part of the ancient penal customs of the race. Thus 
we find no mention of the father's right to punish for offences 
within the family. Such power was regulated, then as now, by 

1 Morgan, Ancient Society, pp. 76, 77. ''■Ibid., p. 94. 3 Ibid., p. 117. 



8 Barbaric Codes 

social custom and existed none the less surely, though not 
chronicled in written laws. 1 Thus, also, crimes, 2 or au- 
thority to punish for such offences, are rarely mentioned; 
yet crimes existed, and the ability and will to punish were 
not lacking. These codes of the German barbarians afford 
us, nevertheless, by far the most clear and complete record 
we possess of ancient legal systems. 3 They deal almost en- 
tirely with offences which would now be classed as criminal, 
but which were not criminal then, in any true sense of that 
word. 4 They were injuries inflicted by man upon his fellow 
man, such as would now result in a civil suit for damages. 
These acts were not regarded nor punished by society, (or 
the State), as wrongs against itself, and in this consists the 
very essence of all crime. The laws, at first, simply afforded 
an opportunity for the injured party to accept compensation, 
rather than exact private vengeance (his undoubted right). 
The penalty was proportioned to the provocation, and not 
to the offence. Later, the laws hardened into a compulsory 
seeking and acceptance of composition offered for an offence, 
before private vengeance could be legally pursued. The 
man who refused to ask and accept an atonement for the 
injury received, and the offender who would not pay the 
customary price for his forgiveness, thus preserving the 
peace of the community, came to be regarded as untrue to 
the folk, and were solemnly declared outside of the law's 
protection — outlaws. Such men were true criminals ; possi- 
bly the first dealt with, under the law, as distinguished from 
ancient social custom. 5 

1 Offences against the father's authority have never been crimes in any age, no 
matter how great the paternal right of chastisement. They were sins rather. 

2 Brunner, ii, 603 et seq. 
8 Maine, p. 367. 

* See article on Crime, Encyclopedia Britannica. 

6 R. R. Cherry, p. 14. For Iceland, see The Story of Gisli, the Out/aw; 
edited by Sir J. Dasent. 



Usefiuness of Crime and Punishment 9 

Thus we find in the earliest Germanic codes many penal 
laws, but not much true criminal law. 1 They were attempts, at 
first weak, but steadily gaining in firmness and hardening into 
law, to tame these wild men of the woods, by substituting an 
elaborate system of composition for the dearly loved right of 
blood revenge. But the lack of a developed criminal law is no 
evidence that crimes were not recognized and punished by 
early Germanic society. In fact, we have positive proof to 
the contrary, not only for the Germans, but for all other 
races of the great European-Aryan stock, and even for the 
lowest savage hordes known to man, such as the Australian 
Black-fellows and the African Bushman. Human society 
everywhere, writes Waitz, " has some common interest in 
opposition to the private interests of the individuals com- 
posing it." 2 Where the individual insists upon acting in op- 
position to social necessity, there we have the true criminal, 
and society must punish him or cease to exist. 

How did primitive society punish the criminal? Just as 
private vengeance struck down the man who had harmed his 
fellow man, so social vengeance destroyed the malefactor 
who had injured the social body so seriously as to awaken 
in its members the passionate longing for revenge. There 
was no criminal law, because there was a separate action and 
procedure in the case of every criminal. Fundamentally in- 
stinctive, as are many acts of self-preservation, and for long 
largely unreasoning, like the lynch law of mobs, primitive 
society struck at its criminal members directly, through the 
folkmote, or assembly of all freemen. The people tried, con- 
demned and punished, following the dictates of ancestral 
custom, with its roots deep in instinctive necessary action. 
Socially necessary action equals right action, because it is 
indispensable for social self-preservation and upward pro- 

1 Maine, p. 369-70. 

2 Waitz, Anthropology , p. 276. 



i o Definition of Crime 

gress. The people also slowly and almost unconsciously- 
modified ancient custom to meet new needs. 

No higher power — king, or priest, or noble — decreed what 
acts should be called criminal or compelled their punishment. 
Lowest savage tribes are intensely democratic and acknowl- 
edge no form of government, human or divine. Higher 
societies — Homeric Greeks, Romans of the days of Romulus, 
early Celts, Slavs and German barbarians of the first Chris- 
tian century — elected their magistrates, chiefs and kings, 
who could also be deposed by the assembly of the free- 
men, and most important matters were always referred to its 
decision. 1 The people were sovereign, judge, and often 
executioner. They alone determined what constituted 
crime. They alone had power to condemn and punish 
criminals. Crime was and is a social product. 

How then shall we define crime? Crime is any act or 
omission to act, punished by society as a wrong against 
itself. This is not merely the author's own definition of 
crime — possibly made to harmonize with his peculiar views 
— it is the condensed expression of opinions held in com- 
mon by the whole school of historical jurisprudence, and 
generally accepted by modern writers on criminal law, as the 
reader may prove for himself by an examination of the fol- 
lowing passages : 

Sir Henry Sumner Maine 
" Ancient Law." 

In the primitive history of Criminal Law, " the conception 
of crime, as distinguished from that of wrong or tort, and from 
that of siit, involves the idea of injury to the state or collective 
community" " The commonwealth itself interposed directly 
and by isolated acts to avenge itself on the author of the 
evil which it had suffered. " (p. 385.) 

1 Ihering, Vorgeschichte der Indoeuropaer, pp. 396-397. 



Usefulness of Crime and Punishment 1 1 

" The earliest conception of a crimen or crime is an act 
involving such high issues that the state, instead of leaving 
its cognizance to the civil tribunal, or the religious court, 
directed a special law or privilegium against the perpetra- 
tor." " The tribunal dispensing justice was the sovereign state 
itself." There was not " at this epoch any Law of Crimes ■, 
any Criminal Jurisprudence. 1 The procedure was identical 
with the forms of passing an ordinary statute." (p. 372-3.) 

" Nothing can be simpler than the considerations which 
ultimately led ancient societies to the formation of a true 
criminal jurisprudence. The State conceived itself to be 
wronged, and the popular assembly struck straight at the 
offender with the same movement which accompanied its 
legislative action." (p. 381.) 

Later, " when a regular criminal law with courts and offi- 
cers had come into being, the old procedure remained prac- 
ticable. The people of Rome always retained the power of 
punishing by a special law offences against its majesty." So 
" the Athenian Bill of Pains and Penalties, or ^loayyelia, sur- 
vived the establishment of regular tribunals." (p. 373.) 
" The Heliaea of classical times was simply the popular as- 
sembly convened for judicial purposes, and the famous Dikas- 
teries of Athens were only its subdivision or panels." "The 
history of Roman criminal jurisprudence begins with the old 
judicia populi, at which the kings are said to have presided. 
These were simply solemn trials of great offenders under leg- 
islative forms." (p. 382.) "When the freemen of the Teu- 
tonic races assembled for legislation they also claimed authority 
to punish offences of peculiar blackness or perpetrated by 
criminals of exalted station. Of this nature was the criminal 
jurisdiction of the Anglo-Saxon witenagemot." (p. 374.) 

1 This is somewhat too sweeping a statement; as German students have proved. 



12 Group Vengeance 

R. R. Cherry 
" The Growth of Criminal Law in Ancient Communities." 

" In ancient law the is no such thing as a crime." "Crim- 
inal law, as distinct from penal law, involves some element 
of public condemnation — such as a sentence of outlawry." 
" The prototype of a modern criminal trial appears in the 
solemn proclamation at the tribe meeting, after full inquiry, 
of the sentence of outlawry." (p. 14.) 

" Criminal law originated, not in any command at all (as 
the School of Analytical Jurisprudence seems to maintain), 
but in the custom of retaliation, at a time when there was no 
such thing as a sovereign body to issue a command, and no 
means of enforcing it, were it issued." (p. 16. ) x 

O. W. Holmes, Jr. 
" The Common Law." 

" The germ of criminal law is found in the desire for retail- 
ation against the offending thing itself .... vengeance was 
the original object." (p. 34.) 

" The secret root from which the law draws all the juices 
of life . . . . i. e., considerations of what is expedient for the 

community concerned ; generally the unconscious 

result of instinctive preferences and inarticulate convictions." 

(p. 35-6). 

John Wilder May 
" The Law of Crimes" 

" Crime is a violation or neglect of duty of so much public 
importance that the law, either common or statute, takes no- 

1 John Austin, founder of the School of Analytical Jurisprudence, gives the fol- 
lowing definition of law in his Lectures on Jurisprudence (Edition of 1869) : 

" Law is a rule laid down for the guidance of an intelligent being by an intelli- 
gent being having power over him." (p. 88). " Customary laws are positive laws 
fashioned by judicial legislation upon pre-existing customs." " These customs are 
merely rules set by opinions of the governed, and sanctioned or enforced morally" 
till they '■ are clothed with legal sanctions by the sovereign one or number." (p. 
204.) Under these ancestral customs crime was punished by society long before 
law began. 



Usefulness of Crime and Punishment 1 3 

tice of and punishes it." (p. 1.) " Not every act which is 
legally wrong is a crime. Private wrongs are redressed by 
suits inter partes. In a criminal prosecution the government 
itself is a party, and the government moves only when the 
interest of the public is involved. The basis of criminality is 
therefore the effect of the act complained of upon the pub- 
lie." (p. 4.) 

"Moral obliquity is not an essential element of crime. 
What, therefore, is criminal in one jurisdiction may not be 
criminal in another, and what may be criminal at a particu- 
lar period is often found not to have been criminal at a dif- 
ferent period in the same jurisdiction." "The general 
opinion of society, finding expression through common law 
or through special statutes, makes an act to be criminal or not 
according to the view which it takes of the proper means of 
preserving order and promoting justice." " Adultery is a 
crime in some jurisdictions, while in others it is left within 
the domain of morals." " Embezzlement, which was, till 
within a comparatively recent period, a mere breach of 
trust, cognizable only by the civil courts, has been nearly, if 
not quite universally, brought by statute into the category 
of crimes as a modified larceny." " The sale of intoxicating 
liquors is or is not a crime, according to the different views 
of public policy entertained by different communities." (pp. 
4 and 5.) " It is impossible to draw an exact line between 
offences that are criminal and those which are merely civil 
wrongs." The question to be settled is, " Has the public 
security been endangered by the offence?" (pp. 7 and io.) 1 

1 May classifies crimes as treasons, felonies and misdemeanors. Treason 
is a direct attack upon government and disturbs the foundations of society itself. 
It is " active disloyalty to the state." (This was probably the original form of 
crime.) 

Beccaria (Marquis) of Milan ; 

" Observe, that by justice I understand nothing more than that bond which is 
necessary to keep the interest of individuals united, without which men would re- 



H Public Wrongs 

" America?i and English Encyclopedia of Law" second 
edition, 1898; the latest and best work of the kind. 

Article on Crime. " A Crime is more accurately charac- 
terized as a wrong directly or indirectly affecting the public, to 
the commission of which the state has annexed certain pun- 
ishments and penalties, and which it prosecutes in its own 
name in what is called a criminal proceeding." (p. 248). 

Crimes distinguished from civil injuries. In State vs. 
Williams, 7 Rob. (La.) 271, it is said: "The distinction of 
public wrongs from private, of crimes and misdemeanors 
from civil injuries, seems principally to consist in this ; that 
private wrongs, or civil injuries, are an infringement or pri- 
vation of the civil rights which belong to individuals, con- 
sidered merely as individuals ; public wrongs, or crimes and 
misdemeanors, are a breach and violation of the public rights 
and duties due to the whole community, considered as a 
community, in its social aggregate capacity." (4 Black- 
stone Com. 5.) 

These extracts from the works of well-known writers on 
jurisprudence should suffice to give us clear ideas concern- 
ing the origin and nature of crime and criminal law. We 
see that among primitive peoples criminal law had scarcely 
yet come into existence. The penal laws first developed 
were laws of tort, or injuries of man to man ; and laws of 
sin, or offenses against the gods. But the idea of crime 
as a serious injury to society itself, and the punishment of 
criminals by society, obedient to the passion for vengeance 
and the dictates of ancestral custom, are found everywhere 
among primitive Aryans and all other races of men. As 

turn to the original state of barbarity. All punishments which exceed the neces- 
sity of preserving this bond, are in their nature unjust." See Beccaria, chapter 
II., Of the Right to Punish. 

" Every punishment which does not arise from absolute necessity," says the 
great Montesquieu, " is tyrannical." (Same chapter.) 



Usefulness of Crime and Punishment 1 5 

that great authority, Sir Henry Sumner Maine, writes in 
Ancient Law (p. 372) : 

" It is not to be supposed that a conception so simple 
and elementary as that of wrong done to the state was want- 
ing in any primitive society. It means rather that the very 
distinctness with which this conception is realized is the true 
cause which at first prevents the growth of a criminal law." 

"When the Roman community conceived itself 

wronged, the state avenged itself by a single act on the in- 
dividual wrong-doer "The trial of a criminal 

was a proceeding wholly extraordinary, wholly irregular, 
wholly independent of settled rules and fixed conditions." 

Crime includes Misdemeanors. It is important that we 
should recognize this truth. There is no fixed line of moral 
heinousness beyond which all acts are crimes. That which 
is punished as a most serious offence in one age is often a 
simple misdemeanor in another, or perhaps no crime at all. 
On the other hand, harmless actions or petty misdemeanors 
of ancient days are now among our most troublesome and 
dangerous crimes. Is adultery a crime, misdemeanor, or 
civil injury? In New York it is legally a crime ; in England, 
more of the nature of a tort, and in some countries it is sim- 
ply a sin, unpunished by the law. Our ancestors very lightly 
regarded most forms of forgery and fraud, malicious injuries 
to property, painful wounds and attempts at murder. We 
deem them serious crimes. What shall we say of drunken- 
ness, of the sale of intoxicants, of failure to have one's chil- 
dren educated? Most people see nothing immoral in such 
conduct, but a few states have made these actions criminal 
in recent years. The moral sense and intelligence of the 
community decide such questions, according to social needs, 
upon the plane of development attained. 

The definition of Crime in the American and English 
Encyclopedia of Law (1898), is framed to include misde- 



1 6 Private Injuries 

meanors. On page 248 we read : "Although in common 
usage the word crime commonly denotes such offences as 
are of a deep and atrocious die, and similar faults and omis- 
sions of less consequence are comprised under the name of 
misdemeanors, yet " crime " and " misdemeanor " in legal 
language are synonymous terms and the word " crime "in a 
statute has frequently been held to include misdemeanors." x 
This is clearly recognized in the Report on Forgery \ by the 
Select Committee on the Criminal Law of England, 1827. 
" Forgery is made criminal by the Common Law, and by 
various statutes. At Common Law it is a misdemeanor only ; 
under the statutes it is frequently a felony. But, unless 
in raising the crime to a higher class," etc. (p. 1). 

Sir James Fitz James Stephen writes : "A large number of 
misdemeanors were created by statute at different times, but 
especially in the 18th and 19th centuries, which differ in no 
essential respect from the common crimes distinguished as 
felonies. For instance, to obtain goods by false pretences, 
to misappropriate securities intrusted to the offender as 
agent, solicitor or banker, and to commit many other fraudu- 
lent or mischievous acts, are, as far as moral guilt is con- 
cerned, on a level with theft." 2 

It is very necessary that we should grasp clearly the dis- 
tinction between tort, sin, crime, and acts of war. The field 
of crime has spread to such an extent as to cover many 
actions formerly classed under these other heads. 

A tort is essentially a private injury as distinguished from 
a public wrong. It is a harm inflicted by a man upon his 

1 Crime includes Misdemeanors. England: Maine vs. Owen, 9 B. & C, 595; 

17 E. C. L., 456. New York : Matter of Clark, 9 Wend. (N. Y.), 212. Penna. : 
Lehigh County vs.. Schock, 113 Pa. St., 373. 111. : Van Meter vs. People, 60 111., 
168. For many more such decisions see page 250, A. & E. Ency. of Law, 1898. 

2 History of the Criminal Law of England, i, 489. The criterion of a delete 
or tort is that, " the person who suffers it, and not the State, is conceived to be 
wronged." (Maine, p. 371.) 



Usefulness of Crime and Punishment 17 

fellow man, not regarded as a wrong done the state, but giv- 
ing rise to a civil suit for damages. In ancient times the 
injured man would have sought private vengeance, and a 
blood feud might have resulted. Later, it became customary 
to accept arbitration and pecuniary composition. Society 
gave to this arbitration a legal form and made the accept- 
ance of the damages awarded compulsory, unless the plain- 
tiff chose not to press his suit. Thus, for a tribesman to kill 
or steal from a man of another clan within his own tribe, was 
a tort demanding vengeance or compensation. 

A sin is an offence against God, frequently punished as a 
crime by men. To kill one's blood brother was a fearful sin, 
punished by the community with the dread social doom of 
outlawry. 

To kill or steal from a member of another tribe was an act 
of war, the weakening of a natural enemy and consequently 
praiseworthy. It was only very slowly and gradually that 
theft, murder, robbery and rape (within the social group) 
became crimes ; regarded not merely as misfortunes or 
harms to an individual, but chiefly as wrongs to society 
itself, to be punished by society, utterly irrespective of the 
wishes of the persons chiefly concerned. 1 

Primitive man was, as Aristotle has well said, " the hard- 
est of all animals to govern." The European Aryan was a 
sturdy individualist, passionate, rebellious at restraint, loving 
war and vengeance as his duty and his right — as that which 
makes a man. The blood feud had its use. It tended to 
consolidate the family group and to develop responsibility. 
It was a rough and terrible means of preserving peace ; for 
even the boldest man would hesitate before bringing the 
vengeance of an entire kindred upon his house from genera- 

1 Maine, p. 370-371, and Encyclopedia Britannica (article on Crime) : " In very 
primitive tribes, murder, robbery and rape are not crimes — not at least in tha 
modern sense." 



1 8 The Coming of Law 

tion to generation. It was also a weighty reason for the de- 
veloping of strength, courage and weapon skill. Every hand 
must guard its own head and every freeman his own home. 
Thus it made for social stability and warlike power. 

The tribal state was but a weak institution, chiefly for mili- 
tary purposes. It punished a few acts as crimes because they 
had to be punished if the social group was to hold together, 
but at first it dared not interfere with individual vengeance, 
the right of private war. 1 Arbitration and composition for 
harm were very early offered as a substitute for blood re- 
venge, but even when the state became strong enough to 
make arbitration compulsory, it yet preserved for long (in 
its trials) the semblance of a purely voluntary agreement. 2 

What primitive society needed most was strong, despotic 
law, to bind it firmly together, and give it strength and power 
to grow. Such law was most difficult to create and to en- 
force. 3 It formed first where most needed, strengthening 
the outer shell of association, hardening the tribe for war. 
Just as in the evolving sphere of earth the outside crust forms 
and hardens first, while the inside matter is yet hot and 
molten, so in primitive human society, the outside shell of 
legal custom hardened over the unruly passions of men un- 
used to restraint, whose explosive natures were continually 
driving them into fierce words and bloody deeds/ In this 
stage of development, writes Steinmetz, there is as yet a 
kind of indifference to internal affairs, and only occasional 
punishment of differing characters (by death, expulsion or 
the like) takes place. The moral and disciplinary consider- 
ation of crime is entirely absent. There is as yet no proper 
compulsory state power. 5 Actions considered crimes were 
necessarily very few, while intense popular abhorrence and 

1 Hearn, pp. 43 " 1 * 2 Maine, p. 374. 

* See Bagehot's Physics and Politics, p. 21, and Hearn, p. 393. 

4 Hearn, pp. 430-432. 5 Steinmetz, chapter 5, book ii. 



Usefulness of Crime and Punishment 1 9 

" almost physical loathing " of the criminal must have made 
him a very rare type of man. 1 Only the necessity for inter- 
nal peace (for the blood feud was simply civil war socially 
sanctioned), strengthened the hands of society to substitute 
compulsory arbitration and composition for private ven- 
geance, at a time when the development of wealth made 
compensation possible, and the increasing cultivation of the 
soil made internal peace more and more indispensable. 2 
Composition became a favorable factor in the struggle for 
existence, and society, by gradually changing certain torts 
into crimes, intrenched itself, as it were, on a higher plane 
of human existence. The number of acts punished as crimes 
was increased. The number of criminals was greatly multi- 
plied, but social welfare was conserved and individual se- 
curity and freedom were enlarged. 

No depth of moral heinousness is sufficient in itself to 
make an action criminal. Sin is never crime unless society 
makes it such. The mere fact that laws exist decreeing pun- 
ishment for certain conduct, will not make that conduct 
criminal. In the statute books of England and the United 
States, there are many penal statutes (Blue Laws) never re- 
pealed, but unenforced for generations. The acts they were 
aimed to punish are certainly not crimes now, and they may 
never have been crimes. For it is not sufficient that society 
desire to punish, make laws to punish, or even try to pun- 
ish. Unless it actually succeeds in punishing, often enough 
to make the average citizen believe offenders likely to be 
brought to justice, the act is not yet a true crime. On the 
other hand, social punishment need not fall upon a majority 
of offenders to make their conduct criminal. In the United 
States to-day, comparatively few men are executed, or im- 
prisoned, for the many murders committed ; but the average 

1 Maine, p. 120. 

J Steinmetz, book i., pp. 427-8; also Hearn, p. 393. 



20 The Essentials of Crime 

citizen, not called upon to investigate such matters closely, 
does not realize this, and believes that " murder will out," 
and in general be punished. Laws need not exist and be 
enforced to make the actions they prohibit crimes. Lynch 
violence may do the work neglected by the courts of justice. 

The essentials of crime are two. 

First. The act must be one that society abhors and desires 
to punish as a wrong against its welfare. 

Second. The act must be punished often enough to 
make the displeasure of society evident and its deter- 
rent force plainly felt. Then, and not till then, does the 
action become a crime. But, if society is at all united in the 
intention to punish, it will generally succeed in inflicting 
some form of penalty, and this the more surely as social 
organization becomes stronger and more effective. 

For it is the social standard of right action that determines 
what conduct shall be criminal. Society says: You must 
live up to a certain standard, at your peril. The test is 
essentially an objective one, and deals with manifest conduct, 
not the motive behind the act. A man thoroughly bad 
morally, need not fear punishment if he keep within the let- 
ter of the law. Again, it matters not how good a man's 
intentions may be, if he breaks the law he will be punished 
as a criminal; for society thinks he ought to have known 
better — unless, indeed, he prove idiotic or insane. 1 The 
standard is not fixed and unchanging, but is modified from 
age to age, according to the general level of knowledge, in- 
telligence and social morality, and the actual needs of an 
advancing civilization. 

Social evolution implies increasing complexity of life, a 
larger interdependence among men, and necessitates a nicer 
adjustment of mutual rights and duties, which must be en- 
forced (largely through the criminal law), if society is to 
1 Holmes, pp. 110-113. 



Usefulness of Crime and Punishment 2 1 

hold together and maintain a healthy growth. " Man, unlike 
the lower animals, has had to be his own domesticator." x 

The criminal is the rebellious social laggard and must in 
some way be prevented from destroying, or seriously harm- 
ing, the social life. There are many ways of accomplishing 
this end : by his death, imprisonment, education, reforma- 
tion ; but all are forms of punishment 2 for the man who re- 
fuses to live up to the standard of right action set by his 
fellow men, and the social welfare imperatively demands 
that such rebels be punished. With increasing civilization, 
more and more actions become socially bad, are per- 
ceived to be injurious by the common sense of the commun- 
ity, and are punished as crimes, thus increasing the number 
of criminals. 

So long as social progress continues, so long as there is 
growth from a lower to a higher plane of brotherly love and 
mutual helpfulness, so long as the rebellious social laggard 
continues upon earth, for so long will crime continue to exist 
and possibly also to increase. 3 That it has increased till now 
this book will give the evidence, so far, at least, as the English- 
speaking people is concerned. But the nature of crime has 
changed and will continue to change, from more to less 
heinous offences, if we judge from the standpoint of present 
public opinion. Under the rule of law men have been 
slowly and painfully learning to curb their hasty passions. 
Crimes of force show a very great decrease during the last 
few centuries, and they are decreasing still. 

^agehot, p. 51. 

2 See the hatred of Elmira and other Reformatory prisoners for education, the 
parole system and the indeterminate sentence. 

3 If in any age and nation a larger amount of crime is punished than in a later 
and higher stage of social development, it is probably because actions not rightly 
criminal are being punished in the former time, or because degeneration, which 
often brings non-punishment for even very dangerous offences, is setting in at the 
latter period. 



22 Shall Crime Ever Cease 

If crime shall ever cease upon earth, it can be only when 
obedience to social commands has become an overmastering 
habit in the individual ; J when society has grown so wise as 
to prohibit only the true crimes of its age ; so strong and effi- 
cient that the mere dread of its displeasure is quite enough 
for the prevention of evil acts; when, in a word, the aim 
of Christianity, the brotherhood of man, is realized on earth. 
Then social morality can rise to higher and higher planes 
without increasing crime. Hitherto the social mind has had 
in every age " le defaut de ses qualites," and has punished 
or tried to punish as crimes, actions helpful or at least not 
harmful to the social welfare. 2 

It is an old truth that the greatest benefactors of the world 
have been also its greatest martyrs. New liberty, new life, 
have come to men often under a criminal ban. Are we wiser 
than our fathers? Do we no longer make these old mistakes? 
Thus much seems sure. The nation that persists in choosing 
its crimes wrongly is on the high road to social degeneration 
and destruction ; and since the English-speaking people has 
continued to grow more strong, more united, more dominant 
upon the earth, we may believe that it has, upon the whole, 
through many errors, chosen its crimes rightly, and that it 
will continue to be, through coming years, the great teacher 
of Christianity and of civilization. 3 

1 A condition practically fulfilled among lowest savage tribes, where obedience 
to a few fundamental ancient customs is thoroughly instinctive and unreasoning, 
because run into the very fibre of the race, by stern processes of natural selection, 
teaching elementary social necessities. 

1 The Statutes of Laborers in England, the subsequent attempts to make labor 
unions criminal, and the punishments of the Inquisition «in Spain, will serve as ex- 
amples; as will also the attempts, in our own day, to make trusts as such criminal, 
and not simply the abuses of trusts. 

8 A crime and a form of crime express two closely related yet diverse ideas, be- 
tween which we should distinguish clearly. A crime is an act, the act of a crimi- 
nal, punished by society as a wrong against itself. A form of crime is a kind of 
conduct which society would punish in this manner, if the act were perpetrated, if 



Usefulness of Crime and Punishment 23 

the criminal existed. Thus, treason is and has always been (as far back as we can 
trace) a most heinous form of crime among men. Throughout the centuries acts 
of treason have been very frequent, and severely punished as crimes; but among 
lowest savage hordes and the most highly civilized modern nations we find almost 
no instances of punishment for this offence. The traitor has practically disap- 
peared from the English criminal statistics during the last half century, and abhor- 
rence of the traitorous act is so intense among lowest savages that no one is found 
to commit this most heinous of crimes. A form of conduct may therefore be 
criminal without the actual infliction of social punishment, but such instances are 
very rare. Piracy is an example for modern times. 

We may dream of a nation, in some future age, when even a new form of crime 
may not necessarily mean an increase of criminals. With us, the transgressor is 
so very natural and customary a result of the prohibition that we expect him as a 
matter of course, and are never pleasantly disappointed by his non-appearance. 
He is not, however, an absolutely inevitable social product, provided knowledge, 
intelligence and morality are high and strong enough, and the habit of obedience 
dominant enough in the social group. 



CHAPTER II 

SOCIAL PUNISHMENT AMONG ANIMALS. 

DOES crime exist among animals? If so, it must be some- 
thing very different from those destructive acts by which an 
animal secures his food, defends himself, strengthens his own 
band, or weakens that of his enemies ; acts which have often 
mistakenly been called the crimes of animals. It must be 
conduct distinctly harmful to his own kind, his own social 
group ; awakening against himself general dislike and ven- 
geance. Many facts unite to prove that such noxious indi- 
viduals are occasionally found among the more intelligent 
animal communities, that they frequently manifest signs of 
degeneration, like those common among human criminals, 
and that severe social punishment is often inflicted upon 
them. 

In the different groups of monkeys, writes Brehm, when 
the struggle for command has resulted in the dominance of 
some sturdy male, any monkey refusing obedience is brought 
to reason by force, with cuffs and bitings. 

The " cinocefali " are well organized for brigandage. They 
post sentinels to warn the devastating horde of the approach 
of man, and death is the penalty inflicted if one prove faith- 
less or negligent in the discharge of this most necessary 
social duty. 1 

When the band is on the march toward the orchard des- 
tined for pillage, profound silence is compulsory. The 
ignorant youngster who begins to chatter is well thrashed. 

1 Brehm. Les Mammiferes i, 81. Ferre, vol. iii, p. 291. Marchi, vol. xix, pp. 
145-153. Lombroso, D Homme Criminel, pp. 30, 31. 

(24) 



Social Punishment Among Animals 2 5 

From the moment he is weaned, stealing is a part of the 
young monkey's education. Indeed, his very life depends 
upon his success in theft. According to Dr. Brehm, the 
mother monkey robs her own child. There is no chance for 
him while his elders are feeding peacefully; but they are 
sure to wrangle over some dainty morsel and then the young 
monkey seizes all he can and escapes. Woe to the unskillful 
thief who is caught in the act. He not only loses his booty, 
but is severely beaten by the older monkeys. Stealing has 
the entire approval of the monkey race. It is not thieving, 
but lack of skill in thieving, which the monkeys unite to pun- 
ish, — a practice said to have been customary among the 
Spartans also. 

Here is good evidence that social punishment is inflicted 
by monkey bands for certain acts akin to treason, that is, 
active disloyalty to the community ; and for lack of skill in 
thieving. The actions punished are thoroughly destructive 
of the social welfare, by preventing, or endangering, the ob- 
taining of the food supply. They are acts in direct opposi- 
tion to the strong trend of the social life, which is, education 
and organization of the monkey band for stealthy marauding 
expeditions. 

Perhaps the most intelligent of the anthropoid apes is a 
species of chimpanzee called the Soko, discovered and 
most carefully described by Livingstone. "They live 
in communities consisting of about a dozen individuals, 
and are strictly monogamous in their conjugal relations. If 
a Soko tries to seize the female of another, he is caught on 
the ground and all unite in boxing and biting the offender." 
Here is true social punishment for adulterous, or more prob- 
ably, incestuous assault. 

Elephants are very sociable by nature and lovers of peace, 
but they occasionally expel from the herd a "rogue" ele- 
phant, " always distinguished as unusually malicious." Once 



26 Malicious Rogues 

driven out from his own herd, the " rogue " is never admitted 
to another, although Saunderson found them occasionally in 
company with another solitary of their own species. Sir J. 
Tennant records, that even when driven into the keddah, a 
"rogue" was never allowed to enter the herd of captives 
with which he was enclosed. In isolation, the rogue is 
noted for malignant ferocity toward men as well as other 
elephants. His actions are often abnormal and he appears 
to be suffering from excitement which sometimes passes 
away. Good temper appears to be a fundamental condition 
of membership in elephant society. A malicious, unsociable 
fellow is punished with something like outlawry, "doubtless 
because of conduct obnoxious to the rest — probably aggres- 
sive." * 

The ferocity of the "rogue" buffalo and "rogue" hippo- 
potamus must probably be accounted for in the same way. 
Intolerable to their own kind and outlawed from society ^ 
they revenge themselves by the indulgence of their malicious 
nature and criminal instincts. Herds of wild cattle, in north- 
ern Scotland, have been known to punish offending individ- 
uals with death. 2 We may believe, therefore, that herds of 
elephants, hippopotami, buffaloes and wild cattle, punish 
with outlawry or death the few incurably malicious, anti- 
social individuals found among them. 

Rodet, a distinguished French veterinary surgeon, states 
that in every troop of cavalry may be found a few horses 
thoroughly bad and rebellious against all discipline, letting 
no opportunity escape them of doing harm to man or their 
companions. Frequently it is found necessary to separate 
them from other horses in the stable, for they try to steal 
their companions' food. M. Rodet calls them " chevaux a 
nez busque," because of their narrow and retreating fore- 
heads ; and Cornevin, who had noted these same facts, tells 

1 Spencer, Justice, p. 13. 3 MacDonald, p. 20. 



Social Punishment Among Animals 27 

us that the Arabs will not admit into their studs the progeny 
of horses thus affected and showing this peculiar physiog- 
nomy. 1 This would seem to support the views of the crimi- 
nal anthropologists, by showing, even among horses, the 
co-existence of criminal instincts with physical abnormities, 
and also the probably hereditary nature of such instincts and 
signs of degeneration. 

Brehm states that wild goats are at times possessed with a 
species of frenzy, as if dangerously ill, and are then disposed 
to kill other animals and men. Another observer tells us that 
goats, after eating of coffee, become furious. The eating of 
poppy seeds makes certain cows dangerous. Bees made 
drunk on honey mixed with alcohol quickly lose their indus- 
trious habits and become robber bees. Excessive use of 
alcohol among men is a potent influence toward degenera- 
tion and crime, and it is known that a sect of Eastern assas- 
sins excite the homicidal furor by a mixture of hemp and 
opium. 2 

In rabbit communities there occur individuals instinctively 
disliked and persecuted by all the others. Similar facts have 
been noticed among domestic poultry and the mild, ringed 
pigeons ; showing strong social antipathy and physical pun- 
ishment of a few individuals, seemingly far divergent from the 
type. 3 

Adulterous conduct, contrary to nature, excites violent 
abhorrence among some of the most intelligent and sociable 
birds, and brings down the penalty of death upon offenders, 
if we may believe the numerous stories on record. For ex- 
ample : A pair of storks built their nest upon the chimney 
of a house near Berlin, and laid therein a single egg, for 

1 Rodet, Notions Alimentaire de Veterinaire. Lombroso : H Homme Criminel, 
p. 9. 

2 E. Ferre, vol. iii, p. 293. Lombroso: L' Homme Criminel, p. 22. 
8 Marcbi, vol. xix, 145-153. 



28 Courts of Justice 

which the owner of the house substituted, by stealth, a goose 
egg. The advent of the gosling greatly excited the male 
stork, which finally flew away, leaving the female bird ten- 
derly caring for her supposititious young one. Early on the 
fourth day the male reappeared, bringing with him nearly five 
hundred storks, "which held a mass meeting in an adjacent 
field," deliberating almost the entire forenoon. " Suddenly 
the meeting broke up, and all the storks pounced upon the 
unfortunate female and her baby gosling, killed them both, 
and after destroying the polluted nest, took wing and de- 
parted, and were never seen there again." 

A community of ravens are reported to have destroyed a 
nest in which they found a young owl, killing both the birds 
— members of their band — whose house had thus been dis- 
graced. Even the domestic cock has been known in several 
instances to kill hens which hatched out partridges or 
ducks. 1 

Karl Vogt, the celebrated German naturalist, observed an 
act which closely resembled murder among the storks. In 
a village near Salette two of these birds had for several years 
made their nest. One day, during the absence of the male, 
a younger stork began to court the female, which at first 
repulsed, then tolerated, and finally welcomed him. After 
many clandestine meetings the two birds flew, one morning, 
to the field where the husband was hunting frogs, and killed 
him. *>t 

There are many remarkable stories of birds meeting in 
large numbers, holding " courts of justice," and, after long 
" discussion," inflicting the death penalty upon the offenders ; 
but these are probably human imaginings, based upon the 
fact recorded by Brehm, that certain migrating birds, assem- 
bled for their southern flight, kill individuals that will not or 
from weakness cannot accompany them. The phenomena 

1 Evans, pp. 231-4. 



Social Punishment Among Animals 29 

have been been observed among rooks, crows, ravens, storks, 
sparrows, and a few other birds. 

Signor Muccioli, Secretary to the Roman Society for 
Pigeon Breeding, has made a careful scientific study of his 
dove-cotes, and published some important observations of de- 
generation and criminality among his birds. These carrier 
pigeons, he tells us, are in general sociable, loving their little 
ones and those of their own species, mild and peaceable by 
disposition, scrupulously neat, very jealous of their nest, and 
monogamous, with almost absolute faithfulness to the conju- 
gal tie. But as among men, there exist lazy, weak degener- 
ates among the pigeons, and experience has taught him that 
these are found usually among the birds discarded as good 
for nothing in the messenger service. They are the most 
lazy and the least intelligent of the dove-cote. He studies 
his pigeons one by one, and attributes the victories of his 
messengers largely to the care with which he eliminates de- 
generates from among them. He finds that these present a 
greater number of mental lesions and other defects, and pre- 
vent the perfecting of the species. " How great," he writes, 
" is the intelligence of the perfect pigeon, and how defi- 
cient that of the degenerate." The strong and bright birds 
lend themselves readily to his hands when he is seeking a 
messenger, eagerly volunteering for the expedition from 
which they are sure to return victorious. Those that hang 
back are frequently the ones that hurt or lose themselves 
if sent. Active anti-social conduct occurs, but is not com- 
mon. Grown males have been known to commit violent 
incest upon their young male offspring, having none of the 
developed instruments of sex, and they occasionally ravish 
little young females ; but " veritable incest is rather rare." 
A mother pigeon of the Liegest variety habitually killed her 
little ones by peckings on the head until the brains came 
out. " It seemed," writes our author, "a crime without the 



2,0 Active Disloyalty to the Community 

slightest social stimulus among pigeons, from whom I elim- 
inated without difficulty these true born criminals." There 
are thieves among pigeons, which try to steal the straws col- 
lected by the others for their nests, and there are vicious 
birds, " ready to wound for a mere nothing." These offend- 
ers are in general lazy, unintelligent and bad messengers. 
Serious combats occur, the fighting being done by strokes of 
the beak upon the neck, but the struggle has never been 
observed to cause death. 1 

Keepers of parks, where wild animals are inclosed, have 
often observed the great differences among individuals of the 
same species ; some remaining always savage and morose, 
while many of their fellows were becoming quite tame and 
friendly to man. Among domestic animals also — -horses, 
dogs and cattle — there are always some untamably ferocious 
individuals, cruel and violent, seemingly from innate wick- 
edness. 

Sir John Lubbock's most careful experiments with ants 
seem to show individual differences between those of the 
same species, just as between men ; but whether there are any 
free individuals punished by the ant community we do not 
know. The greatest harmony appears to reign, and as a 
rule, according to Huber, not even the slaves are subject to 
the slightest compulsion ; yet insurrections of these slaves 
are mercilessly punished with death. Affection can hardly 
be the bond holding together these great communities, some- 
times numbering 500,000 ants, for experiments have shown 
that hatred is much the stronger passion with them. 

Many facts thus unite to prove that the higher, more intel- 
ligent animal communities do inflict severe social punishment 
for a few acts, dangerously antagonistic to the social welfare ; 
such as : 1 . Active disloyalty to the community — i. e., rebellion 
against constituted authority, and faithlessness or negligence 

1 Muccioli, xiv, pp. 39-42. 



Social Punishment Among Animals 31 

in the performance of military duty: Monkeys. 2. Intolerably 
anti-social disposition, manifested by repeated acts of malig- 
nant ferocity against those of their own kind : Elephants, 
hippopotami, buffaloes, wild cattle, and possibly rabbits, 
pigeons, and other social and intelligent birds. 3. The revolt 
of slaves : Ants. The first and second of these sets of nox- 
ious acts may be classed under the one term, Treason; and, 
if the malignant ferocity, mentioned under two, take the 
form of violent opposition to the acknowledged leader of 
the band, this also would be a treasonable offence. 

There is one other f rm of conduct which seems to waken 
intense abhorrence, and bring severe punishment from some 
animal groups, namely: adulterous acts against nattire; and 
in one instance, incest, or adultery: Anthropoid apes (the 
Soko), storks, ravens and domestic poultry. 

True instances of murder and theft are known among ani- 
mals, but such conduct does not seem to be socially pun- 
ished. In all the animal communities, actively anti-social 
individuals appear to be very few, and social punishment for 
such offenders consequently infrequent. As we descend 
lower in the scale of intelligence and sociability, the evidence 
of a true social penalty grows weak and soon disappears, 
although traces of malignantly anti-social conduct continue 
for some time longer. 1 

The scientific study of animal psychology and sociology 
is yet in its infancy, and the facts at our disposal are neces- 
sarily few, yet they seem to warrant fully the belief that the 

1 " Forse s'avvera anche qui nel mondo animale quell'altra legge del mondo 
umano, cbe la criminalita cresce in rapporto diretto della genialita e dell' intelli- 
genza." Lombroso. 

The author did not discover the sentence just quoted from Archivio di Psichiat- 
ria, xiv, 450, until Civilization Through Crime was mostly written and completely 
thought out. He is glad of the support afforded by the words of so distinguished 
a thinker, but is not aware that Professor Lombroso has ever developed his 
idea. 



3 2 Social Reflex Action 

conduct punished by animal communities is such as strikes 
directly at social unity and racial effectiveness ; actions which, 
if left unrepressed, would soon destroy the social group. 
But this certainly does not prove the belief of animals in 
individual moral guilt, nor any thought that the acts punished 
are essentially bad for the social welfare. 

Scientific investigators into animal psychology are gen- 
erally agreed that to morality no brute can aspire ; ideas of 
good and evil are beyond their comprehension. How, then, 
shall we explain the collective punishment by animals of con- 
duct which we know to be thoroughly bad for the social 
group? The answer is not far to seek. Such punishment 
is due to what we may call Social Reflex Action — to instinctive 
antipathy, innate aversion, a feeling that certain individuals 
are radically unlike their fellows, and that they must be pun- 
ished, followed by the infliction of social vengeance. The 
phenomenon is one of instinctive defensive reaction against 
the trangressor of old and necessary social customs. Such 
social reaction implies a common consciousness of injury 
done, but does not imply judicial punishment. Animals do 
not know why they punish. To this extent, therefore, crime, 
in the full human meaning of that word, does not exist 
among the brutes. 

The actions of animals are for the most part automatic, 
obedient to impressions registered in the nervous system 
throughout countless generations of ancestors. These im- 
pressions, coming from the external world along the nerve 
channels, have reference to self preservation, and induce cer- 
tain acts, warding off the harmful stimulus and supporting 
the beneficial one. Animals which react in a certain way 
are rewarded with life and dominance, while those reacting 
in other ways die out and disappear from the earth. Thus, 
by constant repetition, the helpful reaction becomes habitual, 
and is performed instinctively and often unconsciously and 



Social Punishment Anion? Animal. 



«> 



instantaneously. What would become of our eyes if a 
conscious message was required from the brain to make the 
eyelids shut before approaching danger? Lifting of the arms 
when falling is another instance of instinctive defensive re- 
action against anticipated harm. A man struck by another 
in the street instinctively returns the blow, and only a strong 
exertion of the will by one well used to self-control can pre- 
vent the customary reaction. Even the coward will strike 
back and then run away. The child passionately kicking a 
door which has jammed his finger is acting in a strictly nat- 
ural manner. 

But frequently, according to Professor James, the stimulus 
to action is but a sign of some distant circumstance of 
practical importance. 1 Then " the animal's acts are ad- 
dressed to this circumstance, so as to avoid its perils, or 
secure its benefits," as the case may be. To an outside ob- 
server, all such acts might seem inspired by intelligence, for 
in them there seems to be a choice of proper means for the 
attainment of the end in view; but we know that some 
occur in entire unconsciousness on the part of the actor, 
while others are accompanied by consciousness — sometimes 
intense consciousness — but no volition. In this latter class 
would seem to fall the punishment of offenders by animal 
communities. For the habits of associating individuals grow 
more and more alike through natural selection and imitation, 
and become the social customs of the community. Strict 
obedience to custom is required from all on pain of death or 
banishment. Should the social group fail to enforce this 
obedience, it must itself perish, for through the ages, the 
record of those acts requisite for individual and social sur- 
vival has been registered in the nerve centres, and disobe- 
dience is death. Indeed disobedience is often impossible, 
for through long ancestral habit many reactions have be- 

1 James, i, 12. 



34 Instinctive Revenge 

come unconscious and purely reflex. In other cases, the 
reactions are accompanied by consciousness, and appear to 
be less certain and but semi-reflex, as if the habit had not 
yet had time to become wholly fixed and despotic. Finally 
we reach habits which are entirely the result of individual 
education and are purely voluntary. To quote Prof. James: 
" Thus the animal's reflex and voluntary performances shade 
into each other gradually, being connected by acts which 
may often occur automatically, but may also be modified by 
conscious intelligence." 1 

Every animal has the instinct of self-defence, and will 
strike back when attacked. Every society has this same 
instinct, and will react in like manner against an injurer. 
Evidently to be without this instinct courts destruction. In 
union is strength: brute strength and the strength of in- 
tellect. Life in society is the chief means for the develop- 
ment of intelligence, and as such natural selection enforces it» 
The anti-social individual, growing up unlike his fellows, be- 
comes actively hurtful and more and more hateful to them, 
till instinctive antipathy brings social punishment upon him. 
The headlong rush of a mob of citizens, frenzied by some 
recent rape and murder, upon the supposed criminal, the 
fierce determination to hang him first and try him afterwards, 
the immediate execution, the grim feeling of satisfied ven- 
geance ; such lynch law is but too well known even among 
civilized men to-day. What is it but the instinctive social 
punishment of a crime so black that it has stirred the com- 
munity to its very depths, awakening uncontrollable abhor- 
rence and an imperative craving for vengeance, which the 
immediate death of the culprit alone can satisfy. Although 
calmed by many centuries of growing obedience to law, an- 
cestral instincts at times reassert their sway over calmer, 
slow-voiced reason. The impulsive animal nature conquers 

1 James, i, 13. 



Social Punishment Among Animals 35 

for a time the intelligence of the rational man. Social pun- 
ishment for crime is once more very close to social reflex 
action. And how easily this lynch law may again become 
customary is indicated by the action of an Ohio judge, 
who refused to surrender a supposed murderer to Kentucky 
authorities, on the ground that the great number of lynchings 
in that State rendered a legal trial improbable. 

The lower we get in the scale of intelligence, the more des- 
potic is the sway of reflex action over both individuals and 
social groups ; that is, the stronger is the chain which com- 
pels them to follow, in unquestioning obedience, the dic- 
tates of ancestral habit or group custom. Therefore we 
should not expect to find aggressively anti-social, or, in 
other words, criminal members, in the lowest animal com- 
munities. We have no evidence that such exist. 

As we rise to higher and higher types of mind, we find more 
and more acts which seem caused, sometimes by instinct, 
sometimes by conscious choice — semi-reflex acts we may 
call them. But the ultimate basis of reprisal for harmful 
acts lies in instinctive self-defence, reflex action, whether 
individual or social. Self preservation is the first law of 
nature, but it is recognized as a law only by men when they 
begin to deliberate upon their actions, after the purely reflex 
stage is ended. Then man develops the first law of punish- 
ment for wrong-doing — the law of revenge — an eye for an 
eye and a tooth for a tooth. But punishment for harmful 
acts had existed long before ; had existed, so far as only the 
individual is concerned, since the beginning of life upon the 
earth — while social punishment for acts harmful to the social 
group is found, as we have seen, among the higher animals, 
as well as among men. Punishment for crime is born of 
vengeance — social vengeance — and has its warrant and jus- 
tification in the necessity for self-defence. Punishment for 
crime is fundamentally instinctive, and is precedent to all 



36 The Accursed Thing 

ideas of morality, all thought of individuals or their actions 
as good or evil. Punishment for crime is primarily meted 
out for acts most harmful to the social existence, whether 
committed intentionally or through ignorance, it matters 
not. Indeed, primitive law is filled with punishments to be 
inflicted upon trees, stones and animals, as well as men. 
The thing that does the harm is accursed and must be pun- 
ished. So we read in Exodus, xxi. 28 : " If an ox gore a 
man or a woman that they die; then the ox shall be surely 
stoned, and his flesh shall not be eaten ; but the owner of the 
ox shall be quit." In England, so late as the reign of Ed- 
ward I., " If a man fell from a tree and was killed, the tree 
was 'deodand' (forfeited to the relatives of the deceased). 
If he drown in a well, the well was to be filled up." * Some 
will see in this but a late and strong evidence of the imputa- 
tion of moral intelligence to trees and wells and their pun- 
ishment as evil doers ; but ancient penal law is full of evi- 
dence that it aimed directly at the satisfaction of vengeance, 
and that punishment was not proportioned to moral 
obliquity. 

Far down into historic times, Roman and Germanic law 
punished the thief taken in the act much more severely than 
one who evaded capture until men's passions had had tfme 
to cool. Primitive punishment was proportioned to provoca- 
tion. Among savage and semi-civilized men, as well as ani- 
mals, individual or social vengeance fell upon the thing that 
did the harm, irrespective of intent. Thus the savage Kukis 
of southern Asia hack in pieces a tree from which a kinsman 
has fallen to his death. If a tiger kills one of their number, 
his relatives are disgraced until they have slain and eaten 
either this tiger or another one. 

Punishment was originally individual or social reflex 
action, obedient to imperative demands of habit or custom, 

1 Holmes, p. 24. 



Social Punishment Among Animals 37 

imbedded deep in animal nature by the workings of natural 
law. Those who believe that punishment for crime is essen- 
tially a retribution for individual moral guilt, or that its true 
object is the reformation of the offender, may well study pun- 
ishments among criminals and savage men. True social 
punishment existed before moral thought was possible, and 
it has generically nothing whatever to do with the motives of 
the individual. It has its roots deep in the necessity of self- 
defence, and is born of instinctive social vengeance. It deals 
with acts and not with motives, and its aim is the welfare of 
society, and not of the individual offender. 

Note. — It is certainly wise when investigating problems 
in animal psychology, to accept the simplest theory that 
will thoroughly harmonize and explain the facts. Such, the 
author believes, is the theory of punishment by social reflex 
action. The mind of the brute is so unlike ours that we are 
working in an unknown medium, and can at best do little 
more than guess. It is rash, indeed, to impute to animals a 
moral intelligence with difficulty discernible among lowest 
savage men. 



CHAPTER III 



CRIME AMONG SAVAGES. 



In every aggregation of living creatures may be found two 
great tendencies which we cannot explain — a tendency of 
offspring to be like their ancestors, and, on the other hand, 
a tendency to differ somewhat from their ancestors. These 
tendencies are mutually antagonistic and destructive, yet 
both are essentially necessary to the social welfare ; for the 
one makes social life possible and the other makes possible 
social progress. How to foster both these tendencies toward 
the upbuilding of the social strength and effectiveness, is the 
great fundamental problem of every human society. The 
exclusive development of the principle of likeness will result 
in social stagnation, while the dominance of the principle of 
unlikeness will soon bring social disruption and death. In 
the ages before history, the great danger seems to have been 
from the latter tendency, and it was necessary to fuse every 
available social force into united opposition to the stiff- 
necked individualism of the human race. In historic times 
the difficulty has been reversed, and we have had to struggle 
manfully to prevent the crust of social custom from harden- 
ing so closely round us that individual and social growth be 
made impossible. 

When human life was very young upon the earth, men 
were like children, utterly wayward and impulsive, passion- 
ate, revengeful, thoughtless, cruel from ignorance, easily 
frightened and intensely superstitious, yet recovering quickly 
from the immediate effects of all impressions, both good and 
bad ; easily plastic in any direction, but as easily diverted into 

(38) 



Crime Among Savages 39 

another channel. They were natural fighters — the males of 
these wild human hordes — fighting with strange men and 
fierce animals without the group ; fighting also among them- 
selves ; recovering very quickly from terrible wounds (as do 
lowest savages to-day), full of savage vigor and ferocity, un- 
tamed as yet — creatures of boundless possibilities, because 
not yet set and hardened in their ways. Our primitive 
human progenitors differed from the lowest modern savage, 
at least, in this : their lives were not yet run into the mould 
of a curiously twisted and contorted custom ; but it is prob- 
able that in very many respects the resemblance was a close 
one. Social customs they undoubtedly must have inherited 
from a yet lower stage of social existence ; but we may be- 
lieve that earliest man was not quite so slavishly obedient to 
these despotic rules of life, as are the brutes ; even as the 
higher orders of the merely animal world are somewhat less 
inflexibly bound by them than are the lower orders. Cer- 
tainly, all social custom was then, as it were, in the stalk, 
and very many centuries were required for the development 
of the delicate branching twigs and of the curving leaves and 
flowers. Aristotle and Plato and Xenophon — so unlike in 
most of their teachings — all unite in telling us of the exceed- 
ing great difficulty of inducing men to submit themselves 
continuously to any form of social discipline. These great 
thinkers lived when the nations had not yet " had time to 
forget" that man is the " hardest of all animals to govern." 1 
In other words, the highest form of life tended far more 
strongly than lower forms toward individualism, toward 
divergence from its fellows, toward independence : that is, 
the thinking and acting for oneself. 

But human betterment — intellectual and moral — positively 
demanded a social medium for its development. Moreover, 
mutual aid in war and peace was the prime requisite for 

1 Bagehot, p. 25. 



, 



4-0 The Taming Process 

survival, in the struggle for existence with other types of 
men and animals. For, among the rough hordes that roamed 
the untilled earth, which would secure the best hunting 
grounds, which would conquer their enemies, growing 
stronger and more dominant with time? Surely those that 
most speedily developed mutual aid among fellow members; 
that restrained by social pressure individual quarrels and 
strife within the group, especially in presence of the common 
enemy. As Walter Bagehot, in that wonderful little book 
Physics and Politics x puts it : " The slightest symptom of 
legal development, the least indication of a military bond, is 
then enough to turn the scale. The compact tribes win and 
the compact tribes are the tamest. Civilization begins, be- 
cause the beginning of civilization is a military advantage." 

Those hordes which first succeeded in taming themselves, 
in uniting their forces for war, by the development and col- 
lective enforcement of a few social customs, securing cohesion 
and military effectiveness — these were the conquering hordes 
which grew into barbaric empires. This process meant the 
social fostering of certain tendencies toward likeness and the 
social repression of certain tendencies toward unlikeness. 
Those who refused obedience to this social pressure, awak- 
ened general abhorrence and both merited and obtained col- 
lective punishment — in a word, became criminals^ 

At first it was unnecessary and surely impossible to curb 
savage liberty, or shall we call it license, in many directions. 
The actions punished as crimes were exceedingly few. Even 
the most necessary social discipline was endured with great 
difficulty, and any attempt to enlarge its sphere was sure to 
bring violent resistence and the probable destruction of the 
social bond. 

Thus it was imperative to unite all available social forces 
for the safe- guarding of the veriest fundamentals, making 

1 Bagehot, p. 52. 



Crime Among Savages 41 

social life of any kind possible ; and especially for the secur- 
ing of that prime requisite for survival, military strength and 
efficiency; hardening the. outside shell of the tribe for war, 
by turning the spear points outward against the common 
foe. 

Three strong instincts, found everywhere in the lowest 
human communities, were seized upon to do this work, 
linked together and sometimes united finally into one. Each 
is a true socializing force, developing centres of attraction, 
round which the hitherto almost homogeneous living mass 
begins to circle, resulting in a certain differentiation of func- 
tion and co-ordination of efforts for the general welfare. 
These three instincts are manifest in practically every in- 
dividual of the primitive social group. They are : 

1. Instinctive admiration and deference for strongest 
fighters. 

2. Intense reverence for ancient customs. 

3. Boundless superstition and fear of the unknown and 
mysterious. 

In no sense antagonistic and disruptive forces, they favor 
most strongly social unity and effectiveness. The first 
tendency calls into existence leaders in war and representa- 
tives of the social group. The second tendency raises up 
elders wise in the ancient customs of the race. The third 
tendency brings out witch doctors, medicine men, priests of 
heathendom ; and around each set of leaders there is a 
natural grouping for, first war, second justice, third religion 
and medicine. 

In direct antagonism to these three strong trends of the 
primitive social life arise the three great crimes of savage 
peoples: 

1. Treason: The crime against the warlike strength and 
unity of the group. 

2. Incest: The typical crime against ancient social 



42 Three Fundamental Crimes 

custom, and against that fundamental bond of kinship upon 
which all primitive society is based. For incest, if generally 
practised, would utterly confound and confuse the ties of 
relationship, greatly weaken the racial stock, both physically 
and mentally, and prevent the development of that respect 
and reverence for elders, so important in the uplifting and 
strengthening of savage communities. 

3. Evil-Witchcraft: The superstitious fears of the people 
— giving great influence and rewards to socially helpful 
wizards — make the use of their supernatural powers against 
the community a crime of the deepest heinousness. 

Among lowest savage hordes and tribes everywhere, in 
Australia and the Pacific Islands, in Greenland, in North and 
South America, in Asia and in Africa, these three forms of 
conduct are alike abhorred and severely punished by the 
social group, as wrongs against the whole community. More- 
over, these are, in general, the only offences thus punished, 
or in other words, the only true crimes/ 

Other bad actions, adultery, murder, theft, are regarded as 
simple harms to an individual, or family group, to be revenged 
by the individual or family, unless vengeance is bought off by 
composition, z, e., payment of valuables. 

The use of the ferocious blood feud in repressing savage 
passions, through fear of undying hatred and the sleepless 
quest for blood, has already been mentioned ; as has also the 
slow development of arbitration — first voluntary, then com- 
pulsory — the use of outlawry and the change from tort to 
crime, striking evidence of which will be given in the study 
of Anglo-Saxon England. 

Originally, there was no idea of individual moral guilt 
connected with the three great fundamental crimes: Treason, 
Incest, Witchcraft. Even to-day, the traitor may be a man 

r See next chapter. The few notes for which the attention of the general reader 
is desired, are marked r. 



Crime Among Savages 43 

thoroughly honorable and moral in every private relation- 
ship. Lowest savages — the Australian Blackfellows — abhor 
and punish incest with death, without the remotest idea that 
such conduct is sinful. Their ancient traditions show a clear 
perception that incest was very bad for the social welfare, 
and this is most interesting and important, as showing the 
essentially social reason for social punishment. 

The Dieyerie Tribe dwell between Mount Freeling and 
Pirigundi Lake. Mr. Samuel Gason lived for over nine years 
among them, and his writings are believed to be most trust- 
worthy. The Dieyerie believe in Mooramoora (a good 
spirit), who created the sun, while men were created by the 
moon at the bidding of Mooramoora. The tradition regard- 
ing original promiscuity and the reasons for change is as 
follows : 

"After the creation . . . fathers, mothers, sisters, brothers, 
and others of the closest kin intermarried promiscuously ', 
until the evil effects of these alliances becoming manifest, a 
council of the chiefs was assembled to consider in what way 
they might be averted ; the result of their deliberation being 
a petition to the Mooramoora, in answer to which he ordered 
that the tribe should be divided into branches and distin- 
guished one from the other by different names, after objects 
animate and inanimate, such as dogs, mice, emu, rain, iguana, 
and so forth, the members of any such branch not to inter- 
marry, but with permission for one branch to mingle with 
another. Thus the son of a dog might not marry the 
daughter of a dog, but either might form an alliance with 
a mouse, an emu, a rat, or other family. This custom is 
still observed, and the first question asked of a stranger is 
' What murdoo ? ' — namely, of what family are you ?" 1 

We are informed that other low savage races hold this 
idea, i. e. } that incest breeds degenerates. Thus, among the 

1 Curr. ii, 48-9. 



44 Detestation of Incest 

New Zealanders : " Any one outside brother and sister could 
marry, although marriage of first cousins was greatly dis- 
liked. They seem aware of the weakening effects of the in- 
breeding." x 

" By the old custom of the Aht tribes (Indians of Van- 
couver Island), no marriage was permitted within the degree 
of second cousin. Intermarriage with other tribes is sought 
by the higher classes to strengthen the foreign connections 
of their own tribe, and, I think also, with some idea of pre- 
venting degeneracy of race." 2 

Incest is thus made highly criminal, and the word incestu- 
ous the most disgraceful and opprobrious epithet in the 
language, by a race (the Australians), among whom promis- 
cuous intercourse before marriage is quite permissible, and 
adultery, with the consent or by command of the husband, 
thoroughly honorable and customary. 3 Indeed, among most 
savage peoples, the loose sexual intercourse with unmarried 
females that prevails, is strikingly in contrast with the utter 
social detestation and vengeance which destroys those who 
dare to commit incest. 

Thus Kolbe, who studied the Hottentots of South Africa 
in the early 18th century, writes: "They have a tradition 
which condemns both the man and woman who marry, or 
commit fornication, within the proscribed degrees, to death 
under the club ; and they say that this law has always ex- 
isted among them. It is certain, that any one convicted of 
such an act is punished without pity, whatever be his rank 
in the nation." 4 

Also, Dobrizhoffer, missionary to the Abipones of South 
America early in the 19th century, states : "Long experi- 
ence has convinced me, that the respect for consanguinity, 
by which they are deterred from marrying into their own 

1 Tregear. p. 102. s Sproat. p. 99. 

1 See Spencer and Gillen. * Kolbe, i, 268-9. 



Crime Among Savages 45 

families, is implanted by nature in the minds of most of the 
people of Paraguay. In this opinion I was greatly confirmed 
by the Cacique Roy, leader of the savages in the woods of 
Mbaevira, who, when I happened to make mention of in- 
cestuous nuptials, broke out into these words — 'you say 
right, Father ! marriage with relatives is a most shameful 
thing. This have we learned from our ancestors.' Such are 
the feelings of these wood savages, though they think it 
neither irrational nor improper to marry many wives and re- 
ject them whenever they like." ■ 

Nor was witchcraft regarded as in any way sinful, although 
this became in later ages the very essence of the offence. 
Originally it was not traffic with evil spirits which was pun- 
ished as crime. Almost all savage peoples fear and honor 
the wizard, and make use of his services freely. Witchcraft 
in itself was neither sin nor crime. But the evil wizard, who 
used his occult powers against a member of his own com- 
munity, thereby breeding widespread suspicion, hatred and 
fear within the social group, he had to be destroyed, if the 
tribe was to continue strong and united. Thus evil-witch- 
craft became a most heinous crime. Again, the reason is 
essentially a social one. 

The tradition of the Dieyrie tribe, just given, affords 
strong evidence that some among the Australian Black- 
fellows believe in the existence cf a good spirit interested in 
human welfare; but the same work from which this quota- 
tion is taken — a work recognized as the best and practically 
the only good general comparative study of Australian 
tribes 2 — arrives at the conclusion that the western tribes have 
no words at all to express God or good spirit, and it is very 
doubtful whether there was any such idea among the more 
intelligent tribes of the south and east until the coming of 

1 Dobrizhoff er, ii, 212-13. 

* Science of Man, Sidney, Australia, May 22, 1899. 



46 Acts versus Motives 

the whites. " That nothing of the nature of worship, prayer 
or sacrifice has been observed is certain." 2 

This same utter lack of the idea of a good God, and wise, 
all ruling Father of men, was found among the Indian tribes 
of North America at the coming of the French and English. 
" In no Indian language could the early missionaries find a 
word to express the idea of God. Manitou and Oki meant 
anything endowed with supernatural powers, from a snake- 
skin, or a greasy Indian conjurer, up to Manabozho and 
Jouskeha." * The Jesuits introduced the idea of " The Great 
Chief of Men," and the Indians accepted it readily, even 
tribes in no sense Christian. 

" In the primitive Indian's conception of a God the idea 
of moral good has no part" He does not dispense justice 
here or hereafter, but leaves man under the power of a host 
of subordinate spirits. "Nor is the good and evil of these 
inferior beings a moral good and evil. The good spirit is the 
spirit that gives good luck and ministers to the necessities 
and desires of mankind ; the evil spirit is simply a malicious 
agent of disease, death and mischance." 3 "The primitive 
Indian believed in the immortality of the soul, but he did not 
always believe in a state of future reward and punishment. 
Nor, when such a belief existed, was the good to be rewarded 
a moral good y or the evil to be punished a moral evil. Skill- 
ful hunters, brave warriors, men of influence and considera- 
tion, went after death to the happy hunting-ground ; while 
the slothful, the cowardly and the weak were doomed to eat 
serpents and ashes in dreary regions of mist and darkness." 4 

Yet, among all these people who possessed almost no idea 
of moral good and evil, crime existed and was punished, be- 
cause essentially bad for the social welfare. Their good was 
a social good, and their evil a social evil. They possessed 

1 Curr, The Australian Race. 

1 Parkman, p. lxxix. ■ Ibid., p. Ixxviii. * Ibid., p. Ixxx. 



Crime Among Savages 47 

an ethical standard, but it was a social standard of right ac- 
tion, not a religious standard of right motive. 

We are told that the Bushmen of Africa have apparently 
not the least conception of a Supreme Being. They have 
been known to offer prayers to a caterpillar insect. 1 These 
Bushmen are probably the earliest remaining aborigines of 
South Africa, and " rank with the savages of Australia as 
the lowest existing type of mankind," yet they unite to 
punish evil witchcraft with death. 

Intellectually very low in the scale of life, the Australians 
are morally even lower. Some writers have denied them any 
moral feelings, 3 while others, like Sir John Lubbock, agree 
with Curr, that they have no religion. 3 All their-tribes believe 
in the existence of evil spirits, to whose malevolence and to 
the charms of sorcerers they attribute almost all their ills, in- 
cluding death ; for they have no conception of death from 
natural causes. They believe also in the soul and in life be- 
yond the grave, but all their thoughts on such subjects are 
very hazy and confused : indeed it is only with the greatest 
difficulty that they can grasp any abstract idea. Among the 
western Blackfellows there are no words for God or justice, 
and but few terms of endearment. Yet all their languages 
have words for theft, incest and cowardice, the last two being 
terms of greatest insult. 4 

Words for " good " and " bad " are invariably found in use 
among Australian tribes, and they are applied to actions 
beneficial or injurious to the social group. Thus Collins 
writes : " On our speaking of cannibalism to the natives of 
New South Wales, they expressed great horror and said it 

1 Lichtenstein, ii, 200. 

* Wake, "Evolution of Morality," pp. 293-5. 
'Lubbock, "Prehistoric Vimes," p. 436. 

4 There are often no words for murder, adultery or rape, and no words for love, 
virtue and mercy. See Dr. Maudsley. 



48 Social Standard of Right Action 

was ' wee-ree ' (bad). When we punished some of our peo- 
ple for ill-treating them, they expressed their approbation 
and said it was ' bood-yer-re ' (good). Midnight murders 
they reprobated, and applauded acts of kindness and gener- 
osity." ■ Thieves, when detected, make no resistance, evi- 
dently considering their actions bad and deserving of punish- 
ment. 2 " Their notions of duty relate mostly to neighborly 
service and social interest." " They are not at all thieves 
and liars, but capable of many good deeds." 3 

They punish incest and evil-witchcraft with death, as awful 
crimes. Evidently they possess a social standard of right 
action, to which members of the tribe must conform. "With 
the customs of his tribe," writes Curr, " the Australian Abor- 
igine must in a general way comply, and for exceptional in- 
fractions pay established penalties." Persistent disregard of 
tribal customs results in death or outlawry, which is sure to 
be speedily followed by death. 4 " As amongst all savage 
tribes, the Australian native is bound hand and foot by cus- 
tom. What his fathers did before him he must do." 
" Any infringement of custom, within certain limitations, is 
visited with sure and often severe punishment." 5 

Yet, ultra conservative as the Blackfellows are, changes in 
custom have been introduced, however difficult. The .tradi- 
tions and festival customs of the tribes of Central Australia 
and of the natives dwelling near Perigundi Lake show this 
plainly. There has been some social growth, some upward 
progress, and this progress has been enforced and safe- 
guarded by the production of a great new crime. 

The Deyerie tradition states that promiscuity and incestu- 
ous cohabitation were at one time generally practiced. (As 
the Bible puts it: "All flesh had corrupted his way upon the 

1 Wake, i, 319. * Waitz, p. 297. 

3 Encyclopedia Britannica, article on Australian Blackfellows. 

*Curr, i, 62. 6 Spencer and Gillen, pp. 11-12. 



Crime Among Savages 49 

earth.") But at last incest was made highly criminal; and 
this must have been far back in the history of the human 
race, because of the intense abhorrence now occasioned by 
breaches of this ancient social custom. For the antiquity of 
a crime among low savages must be measured by the inten- 
sity of the detestation it awakens in the community, by the 
rareness of its occurrence and the sureness and severity of the 
penalty inflicted. Custom rules with a rod of iron among 
lowest men (as instinct among beasts), and obedience will be 
more instinctive, more unquestioning, the longer the binding 
yoke of custom has existed. It is more easy to find instances 
of the social punishment of evil-witchcraft than of social ven- 
geance for incest, and yet this latter is perhaps even more 
widely abhorred and more generally forbidden by sacred, 
immemorial custom. Treason, or active hostility to the war- 
like strength and efficiency of the social group, is practically 
unknown among lowest races — we hear absolutely nothing 
about it, because it does not exist. Somewhat higher in the 
social scale we begin to meet with it, but the crime is still 
exceedingly infrequent. The punishment is always death, 
or outlawry, which is worse than death itself and speedily 
includes it. Thus we are told that the natives of Tonga 
exhibit intense loyalty. 1 The Aht Indians of Vancouver 
Island are " devotedly loyal " to their " own tribe." 2 Among 
the New Zealanders, outlawry is enforced for a very few 
offences, " black-treachery," etc., " so rare as to be scarcely 
worth noticing." 3 The betrayer of the secrets of the com- 
munity is punished with death by the Aleuts of Alaska. 4 
These peoples, though far removed from the lowest savages, 
have not yet developed royalty — they have no king to rule 
over them and take the lead in war. 

When the king comes, the crime of treason is enlarged,, 

1 Martin, ii, 142, 146. 2 Sproat, p. 151. 

'Tregear, p. 107. 4 Petroff, p. 152. 



50 Treason 

to protect his person, ensure him honor, and enforce his 
authority, for the social welfare demands this. Instances of 
treason become increasingly frequent, as we find them 
among the negro kingdoms of Africa. 

Accordingly, the author believes that treason — active dis- 
loyalty to the social group — striking directly at its warlike 
strength and effectiveness, is the great fundamental and first 
crime of the human race. 

The evidence of social punishment among animals sup- 
ports this theory. Nothing else is so absolutely indis- 
pensable to the savage horde as power to fight well and 
successfully. There must be absolute unity of all strength 
within the group to this end, for the struggle means always 
social victory or death. As Walter Bagehot well says : ■' In 
this early time, every intellectual gain, so to speak, that a 
nation possessed was invested and taken out in war, all else 
perished;" 1 and every superiority a tribe possessed, moral, 
mental, physical, was valued and estimated in terms of the 
military advantage found in it. This was true of the strong 
legal customs binding men together — true of monarchical 
despotism — true of religious faith. " Nation making is the 
occupation of men in these early ages, and it is war that 
makes nations." 2 

Steinmetz, in a paragraph of his valuable book upon "The 
First Development of Punishments," recognizes the possibil- 
ity that treason against the community was the crime first pun- 
ished, despite the fact that instances of such treason occur 
first among peoples by whom " public punishments" have 
been " already highly developed." " We may believe," he 
writes, " that sudden outbursts of wrath of the whole people 
against the traitor often occurred, although they do not ap- 
pear in our sources of information. They would be, then, 
the first beginnings of these public punishments. That we 

* Physics and Politics, p. 49. 2 Ibid., pp. 65-77. 



Crime Among Savages 5 1 

do not find them in evidence, tends to show that the traitor in 
this stage of culture very seldom existed. The enemy would 
be too intensely and too generally hated. The crime gave 
too little inducement and means of reward. The traitor, who 
must leave his own folk, would surely be regarded as an 
enemy by other people .... The punishments inflicted 
would have been at once impulsive and seldom required." 1 

Lowest known human societies are groups of kindred and 
are very democratic. They have no king, no form of gov- 
ernment, and no religion but vague dreams, fetish worship, 
and propitiation of the multitudinous powers of evil, to whom 
— even if they believe at all in good supernatural beings — 
they think the earth is entirely given over. 

Social punishment, therefore, cannot be due to a religious 
command, for the malevolent spirits, hating man, certainly 
canrot be imagined as commanding punishment for actions 
which must be pleasing to the demons, because harmful to 
the tribes of men. Neither can they originate in the com- 
mands of rulers who do not exist among them. Thus, Curr, 
writing of the Australian aborigines in general, states that 
no fact is more surely established concerning them than this : 
they have no form of government ; if by this word we mean 
" the habitual exercise of authority by one or a few individ- 
uals over a community or body of persons." 2 

The Blackfellows live in small local groups or petty tribes 
of from 25 to 500 individuals, whose members are closely 
related by blood and live in the "' strictest alliance, offensive 
and defensive." Again, we find absolute loyalty to the 
social bond — treason unknown. There is no such thing as a 
chief among the central Australians ; but fame in fighting, 
hunting, or knowledge of the ancient traditions and cus- 
toms of his people raises some man to the position of " ala- 
tunja" in each community. u He has no definite power over 

1 Steinmetz, ii, 339-340. 2 Curr, i, 60. 






52 Primitive Democracy 

the persons of the individuals who are members of his 
group," and all his authority is very vague. But "he calls 
together the elder men, who always consult concerning any 
important business, such as the holding of sacred ceremo- 
nies or the punishment of individuals who have broken tribal 
custom." His judgement upon any case need not be followed 
by the council. 1 These religious ceremonies (^"engwura") 
are, as the natives say, to make " men very good:" " Ertwa 
murra oknizra," = " man, good, great, or very." They be- 
lieve that the passing of this ordeal strengthens, " imparts 
courage and wisdom, makes the man more kindly natured 
and less apt to quarrel." Not until these ceremonies have 
been undergone is a man recognized as " a perfectly devel- 
oped member of the tribe." 2 Goodness evidently consists in 
conduct socially beneficial, and every male is educated up 
to the requirements of the social standard of right action. 

The Bushmen are sworn enemies to the pastoral life, and 
live by hunting and plunder. The temporary villages or 
kraals number about twenty-five huts, one hut to a family. 3 
"Not the least approach to any tribal unity appears in their 
wandering groups." " They have no chiefs, bodily strength 
alone forming a distinction among them." 4 

Among the Gilbert Islanders, " in war and other matters, 
the heads of families formed the deliberative assembly or 
government for the time being." " They were constantly at 
war with each other." 5 

The Maoris of New Zealand are described as living in a 
republic with leading men and no proper form of govern- 
ment. 6 At the assemblies of the people for the administra- 

1 Spencer and Gillen, pp. 9, 10. 2 Ibid., p. 271. 

'Barrow, i, 275. 

4 Encyclopaedia Britannica. Article on the Bushmen. 

B Turner, pp. 295, 305. 

• Tregear, pp. 102-107. 



Crime Among Savages 53 

tion of justice women as well as men expressed their 
opinions. 1 

Among the western tribes of Torres Straits, Australia, 
"there was no recognized government or state, nor any 
system of religion." Ancient customs were their laws. 2 

The Greenland Esquimaux are very low in the intellectual 
and moral scale. Their notions of supernatural beings are 
extremely hazy — they have no definite religion, and " abso- 
lutely no political organization among them." 3 The Green- 
landers' " first social law is to help others. On this law 
and on the principle of common suffering and common en- 
joyment, all the small communities depend for their exis- 
tence." 4 Their grand idea of virtue is " to have been dex- 
terous and diligent at their work," to have performed great 
exploits, mastered many whales and seals to be distributed 
among the members of the group according to old and 
definite rules. 5 Only those who have performed such acts 
(good social actions, utterly irrespective of motive), will go 
to the Elysium where the feast is always preparing. They 
believe " wicked people and witches especially" will be ban- 
ished to a place of torment. 6 

Among " the Indians," writes Schoolcraft, "the democratic 
principle is implanted a little too deep. The chief has no 
authority to act for the tribe, and dare not do it. If he does 
he will be severely beaten or killed at some future time. 
All business is done by the majority of the band assemb- 
ling and consulting each other." The motion " that appears 
the best is adopted by general consent and the chief has to 
be governed according to the voice or opinion of the tribe." 7 

1 Thomson, New Zealand. * Haddon, p. 314. 

3 Nansen, ii, 340 : Hall, ii, 316; Crantz. 

* Nansen, ii, 304. 

6 See Crantz, and Nansen, ii, 302. 

6 Crantz. For impulsive social vengeance upon witches, see i, 194. 

7 Schoolcraft, ii, 182-3. 



54 Strength of Ancient Custom 

Among the Hill tribes of India each little village is practi- 
cally an independent community. Every man is as good as 
his neighbor. There are meetings of the elders for arbitra- 
tion, to prevent individual vengeance, and Punjayets, or 
councils of the whole tribe for judicial purposes, etc. Thus, 
the Nagas " have no kind of internal government," no priest- 
hood apparently, and very few religious ceremonies. " Petty 
disputes and disagreements . . . are settled by a council of 
elders, the litigants voluntarily submitting to their arbitra- 
tion. But, correctly speaking, there is not the shadow of a 
constituted authority in the Naga community, and wonderful 
as it may seem, this want of government does not lead to 
any marked degree of anarchy and confusion." 1 They ex- 
hibit intense love for their native village. Terrible blood 
feuds exist among them, and " the Naga's religion, the Naga's 
principle and sense of honor is comprised in one word, and 
that word is revenge — deep, deadly revenge — and the pros- 
ecution of it to the extremest lengths for the most trifling 
offences." 2 Ancient custom is intensely strong among all 
these peoples. 

MacGahan writes in Campaigning on the Oxus, (p. 350), 
" The state does not exist among the Turcomans. There is 
no body politic, no recognized authority, no supreme power, 
no higher tribunal than public opinion. Their head men, it 
is true, have a kind of nominal authority to settle disputes ; 
but they have no power to enforce decisions. These the 
litigants can accept, or fight out their quarrel, just as they 
please. And yet they have such well-defined notions of 
right and wrong as between themselves, and public opinion 
is so strong in enforcing these notions, that there are rarely 
dissensions or quarrels among them!' This shows the great 
power of social custom in repressing criminal instincts. 
Each member of a tribe, of course, obeys his tribal customs. 

1 Stewart, xxiv, 608. ' Ibid., xxiv, 609. 



Crime Among Savages 55 

The origin of crime and social punishment, therefore, 
cannot be traced to the command of supernatural powers, 
nor to the dictates of any king or human ruler. Where, 
then, shall we seek it ? The answer is surely manifest. The 
strong and sufficient cause for the social punishment of 
crime must be looked for in those ancient and time-honored 
customs, for which savages can give no reason, but which 
they follow instinctively, in blind reverence and unquestion- 
ing obedience ; for they are the teachings of Mother Nature, 
drilled into countless generations of savage ancestors. They 
are lessons in social necessity, in social selection, where 
failure to learn, or refusal to obey, means the inevitable 
destruction of the social group — means social death. Crime 
is essentially a social product. 

But are the imperative commands of immemorial custom 
everywhere so strong and binding upon low savage men? 
The evidence is overwhelming. Turn where you will, you 
find the same answer. The mere mass of testimony is so 
great, from America, Asia, Africa and Oceanica, that it 
would be folly to attempt to give, here, other than a few 
examples, some of them already referred to. 

Australia. — " As amongst all savage tribes, the Aus- 
tralian native is bound hand and foot by custom. What 
his fathers did before him he must do. Any infringe- 
ment of custom, within certain limitations, is visited with sure 
and often severe punishment." x 

In the Islands of the Pacific Ocean, law is scarcely ever 
separated at all from ancestral custom, which is very 
powerful. 2 

America. — Among the American Indians ancient social 
customs define and are most powerful for maintaining mutual 
rights and duties. 

Aleuts. — "The Aleuts still maintain that a failure to ob- 

1 Spencer and Gillen. pp. 11-12. 2 See p. 77. Papuan Islanders. 



56 Ancestral Teachings 

serve the customs of their forefathers, and especially a wil- 
ful neglect of the same, is attended with all kinds of disasters 
and punishments." 1 

Dakotas. — Children of the Dakota are taught all the an- 
cient customs of the race and obedience to them. 3 

Araucanians of South America. — Their "laws are nothing 
more than primordial usages, or tacit conventions, that have 
been established among them." The Araucanians elect 
their chiefs, who are regarded simply as " the first among 
equals." This people " cannot endure despotism," and 
"compel" the chiefs " to keep within the bounds prescribed 
by their customs." 3 

ASIA. — Khonds. — There is unfaltering devotion to the 
common cause and to the ancient customs of the race. 4 

Karens. — "The Karens ascribe all their laws to the elders 
of preceding generations and have no idea of any period 
when they did not exist." These traditional commands 
meet all the relations of man to man, moral and political, 
civil and religious. 5 

Africa. — Gold Coast Negroes. — "A semi-political and 
religious custom called Egbo is the most potent controlling 
influence in old Callebar and fulfils all the purposes of a 
natural code of laws." 6 

Hottentots. — The office of captain of each kraal (i. e., vil- 
lage) is hereditary, " but he is not installed until he has 
solemnly engaged, in the presence of the people, not to alter 
or deviate from the ancient laws and customs of the kraal." 
The usual explanation or argument of this people is: "'Tis 
Hottentot custom and ever was so." 7 

1 Petroff, p. 156. 2 Schoolcraft. 

* Thompson's Alcedo, i, 405. 

4 Campbell, p. 239; Macpherson's Report, p. 52. 

5 Mason, xxxvii. Pt. ii, 131 and 143. 

6 Jour. Ethn. Soc, 1848, i, 247. 

7 Kolbe, i, 162. 



Crime Among Savages 57 

Dahomans. — " Custom rules everybody and everything at 
the Court of Dahomy." x 

Ashantes. — The king is represented as an absolutely des- 
potic monarch, but he is under " obligation to observe the 
national customs which have been handed down to the peo- 
ple from remote antiquity, and a practical disregard of this 
obligation, in the attempt to change some of the customs of 
their forefathers, cost Osai Quamina his throne." 2 

The violation of a few fundamental and most socially neces- 
sary of these ancient customs, awakens in the savage breast 
everywhere, intense abhorrence and a passionate longing for 
vengeance, which brings immediate or speedy death, or out- 
lawry, upon the hated individual. 3 

Oftentimes the horror occasioned by the crime is so over- 
mastering and the social revenge so immediate, impulsive 
and irregular, that one is tempted to classify the punishment 
under the head of social reflex action, like the vengeance 
inflicted by animal communities ; and surely those death 
penalties, meted out by savage races in moments of wild 
fury and excitement, do occasionally deserve the name of 
semi-reflex, and remind us forcibly of the probably instinc- 
tive and utterly unreasoning beginnings of punishment for 
crime, precedent to all ideas of morality, and of the fierce 
warrant and justification for such conduct, in the absolute 
necessity of social self-defence. But the evidence varies 

1 Forbes, ii, 176. 2 Beecham, p. 90, et seq. 

' See p. 26. Social Punishment Among Animals. The few strong customs 
which induce social punishment for crime are certainly not the only customs bind- 
ing savage men. Their whole lives are often enmeshed in a multitude of petty 
and burdensome regulations, which seem to us in many cases perfectly ridiculous, 
but which usually contain at bottom a discipline or lesson useful for their stage of 
social development. At any rate the savages themselves thoroughly believe in 
the usefulness of these minor rules of life; but the transgressor is punished, not 
by an outraged social group, but by the terrible fear of impending evil, physical 
or mental, the dread of sickness, malformation, torture, from unseen super- 
natural powers, angered by his act. 



58 Frenzied Vengeance 

greatly. Sometimes the most frenzied and immediate social 
vengeance is found among savage races (like the negroes ), 
fairly well advanced politically and socially, and even among 
highly civilized nations ; while among the very lowest hordes 
(like certain tribes of the Australian Blackfellows), collective 
punishment is sometimes inflicted after long deliberation and 
in an orderly and regular manner. Among the fierce Afri- 
can Bushmen and the mild and peace-loving Greenland Es- 
quimaux — both among the lowest human beings known to 
man — social vengeance is w r reaked upon the hated malefactor 
in a thoroughly tumultuous and ferocious manner. 

Esquimaux. — " Their procedure with witches is very 
short. If a rumor prevails that a certain old woman is a 
witch, because the poor old creature made pretences to 
charms and quackery, all the country will join to stone her, 
or she will be thrown into the sea, or hewn to pieces, accord- 
ing as their rage dictates to them." * 

Bushmen. — Among the Bushmen there are " people who 
are considered as magicians and who are believed to have 
the power of commanding rain, wind and thunder, at their 
pleasure. If, unluckily, one of these magicians happens to 
have predicted falsely several times in succession, he is 
thrust out of the kraal, and very likely burned, or put to 
death in some other way." 2 

Tasmanians. — " They had few crimes against each other. 
Faults not immediately punished were usually overlooked. 
Injuries were soon forgotten." 3 

Fijians. — " Nearly all sudden deaths are ascribed to this- 
cause" (i. e., witchcraft). " Persons detected in the act of 
burying these deadly charms are summarily dealt with, or 
if found out afterwards, their houses are burnt and they 
themselves killed." 4 

1 Crantz, i, 194. 2 Lichtenstein, ii, 61. 

3 Bonwick, p. 10. * Williams and Calvert, p. 195. 



Crime Among Savages 59 

Iroquois and Htirons. — " Witches, with whom the Hurons 
and Iroquois were grievously infested, were objects of utter 
abomination to both, and any one might kill them at any 
time." 1 

Araucania?is of South America. — " Justice is administered 
in a tumultuous and irregular manner, and without any of 
those preliminary formalities that are observed among civil- 
ized nations. The criminal who is convicted of a capital 
offence is immediately put to death." Such offences are 
" treachery, witchcraft, adultery, and the robbery of any 
valuable article." Other offences of less importance are 
punished by individual retaliation, which is much in use 
among them. 2 

Hill Tribes of India. — Bheels. — The Bheels " are loosely 
united among themselves and have a rude system of custom- 
ary justice, which their chiefs rarely venture to break or 
change." For harms to an individual — such as " robbery, 
murder or theft " — reparation is demanded by " the chief, or 
family of the sufferer. If refused, immediate resort is had 
to acts of retaliation or reprisal, which provoke much 
further violence and loss of life on both sides. These 
proceedings are, however, only the effusions of sudden rage, 
and the elders of the tribes, when that is cooled, interfere, 
and in all quarrels and disputes, great or trifling, they have 
resort to Punjayets. These often consist of several hun- 
dred members, and proceed to settle the terms on which 
the murder, robbery or theft is to be compounded. Fines 
in cattle or money are high upon murders, but Bheel Pun- 
jayets never inflict death." Such judicial settlements of in- 
dividual injuries of man to man, very closely resemble the 
procedure everywhere in use among the early Teutons and 
the Anglo-Saxons in England. So much for offences of 
tort — now for true crimes among the Bheels. " If the crime 

'Parkman, p. lxiii. 2 Thompson's Alcedo, i, 405. 



60 Immediate Execution 

committed be of so atrocious a nature as not to be com- 
pounded or forgiven, the culprit is pursued and destroyed 
by those whom this act has made his enemies ; but he must 
be put to death in what they term an affray, that is, in warm 
blood ; to take the life of each other coolly is revolting to 
their usages." J 

Mishmis. — " Theft is punished by a fine inflicted by a meet- 
ing of all the gams (i. e. } head men). If the fine is not 
paid, or the offender refuses to pay, he is slain in a general 
attack, being cut up by the company assembled." Murder 
is punished in the same way, but the fine is heavier. 2 

Africa. — Hottentots. — Every Hottentot kraal " has a 
court for the administration of justice, composed of the cap- 
tain and all the men of the kraal." It is held in an open 
field, the men squatting in a circle. Guilt or innocence is 
determined by a majority of voices. If the prisoner is con- 
victed and adjudged worthy of death, sentence is immediately 
pronounced and immediately executed on the spot." The 
captain " as chief executioner, leaps with a kind of fury upon 
the criminal, striking him a terrific blow with his club. Then 
the rest of the assembly throw themselves also upon him» 
and although he is very soon dead, they do not cease to 
rain blows upon his head, stomach and side, until the head 
is all in pieces." 3 

Malagasy. — " Until a very recent date, persons detected 
in the act of stealing in the public markets, by cutting off 
the corner of the lamba in which money is usually tied up, 
were mobbed by the populace and killed without a trial!' 4 

Savage tribes are of necessity organized primarily and 
principally for war ; courage and success in battle form the 
cardinal virtue — the summum bonum. 5 Originally these 

1 Malcolm, i, 576. 2 Griffith's Journals, p. 35, et seq. 

3 Kolbe, i, 165-172. 4 Sibree, p. 305. 

5 The two ideas are generally merged into one in the savage mind. The suc- 
cessful warrior is the courageous man, and vice versa. 



Crime Among Savages 61 

tribes are intensely democratic, but long-continued warfare — 
especially when the group attains to any considerable 
size and becomes a conquering nation — usually raises to 
increasingly despotic dominance, a head chief or king. The 
feeling of kindred and of common descent aids in this, for 
the king is soon regarded as the " father of his people," and 
he is always a king of men, not territory ; king of the Eng- 
lish, not king of England. He is himself the great warrior 
and war leader, like Saul or David — the " koennig : the 
man who can " — and he gathers around himself as his advis- 
ers the elders wise in ancient custom, and the medicine men 
or priests. Soon he begins to unite all their functions in 
himself. He is not only leader in war, but also judge in 
peace, sworn to observe and to enforce the sacred, ancient 
customs of the race. He becomes priest and prophet — 
finally he is worshipped as a god — supported in all this 
by the people, as the manifestation of the social unity, 
the preserver of the social life and effectiveness. He is the 
keystone of the arch, thus producing compactness and strength 
of organization, first for war and then for other purposes as 
well. Offences against him personally become regarded as 
wrongs against the whole community, and are punished as 
crimes, thus enlarging the sphere of treason, and introducing 
entirely new criminal offences. Naturally this process mul- 
tiplies criminals ; and yet it is thoroughly astounding to see 
how abject and unquestioning oftentimes, is the obedience of a 
truly brave and warlike people to a thoroughly bad sover- 
eign, who kills their nearest and dearest to gratify a whim, 
so long as he does not seek to change or deviate from their 
time-honored customs. 1 

Their reverence and love are so deeply seated that it 
seems almost impossible to shake them. "The king can do 
no wrong;" without him they feel they cannot live. In this 

1 See The Dahomans and Ashantees, Dalzel, p. 69. 



62 National Stability 

lies the great danger that people once so warlike, so inde- 
pendent, finding government of any kind very irksome and 
very hard to bear, may become too tame, with the manly 
fibre killed in them — as it was among the ancient Peruvians 
and Mexicans — under the yoke of a deified emperor and a 
cruel and implacable religion. They are full of humility, 
obeying every one, writes Zurita of the Mexicans; 1 and they 
are thoroughly indolent, for they have become accustomed 
to act only from fear of punishment. This is not the stuff 
out of which the enduringly progressive civilizations of the 
world are made. The caste system hardens around them, 
making helpful as well as harmful variation alike practically 
impossible. Upward growth ceases, and we have an arrested 
civilization, or an utterly unprogressive savage tribe, accord- 
ing to the time of the hardening of the outer crust of custom. 

While the first successful and conquering groups were 
those that most easily tamed themselves, the final conquer- 
ors and leaders of the world's civilization were and are those 
who found this taming process so exceedingly difficult that 
for many centuries they lagged behind, and were despised as 
mere barbarians and savages, by the great nations of Egypt, 
Assyria, Babylonia and Persia. But the Greek, Roman 
and Teutonic peoples succeeded at last in securing national 
stability, while preserving and safe- guarding a strong ten- 
dency to variation — the spirit of individual liberty — which has 
always been so masterful in these races that it has compelled a 
place for itself, the safe-guarding of a fitting sphere for its 
development, as the price and condition of individual sub- 
mission to the social needs. 

Free discussion was the great means for the attainment of 
this good end. 2 Among the Teutons, it was those that 
most surely preserved their old love of liberty, their demo- 
cratic customs of self-government, and slowly developed a 

1 Zurita, p. 186. 2 Bagehot, pp. 158-162. 



Crime Among Savages 63 

national polity of their own, that became the world's lead- 
ers and rulers. The tribes »hat wandered far from home 
and adopted to a large extent the laws and usagts of the 
effete Roman civilization, came as conquerors and grew up 
into mighty kingdoms, that lasted for a day or for a hundred 
years — where are they now? While England, that strug- 
gled for a thousand years to unite its clashing races and lit- 
tle, liberty-loving kingdoms into a strong nation, a united 
people, before finally succeeding in the seventeenth century; 
America, which has at last merged local differences and 
jealousies, with greatest difficulty, under the Federal Gov- 
ernment of the United States; and Germany, where the Teu- 
tonic peoples could not overcome their seemingly irresistible 
tendency to split up into little warring, independent states, 
until 1 87 1 — all three great peoples conquering themselves 
finally only under the pressure of a terrible war — these are 
the leaders of the world's civilization to-day; the conserva- 
tively progressive, world conquerors and educators and 
Chnstianizers, upon whom the hope of the future seems to 
rest. 1 

The great barbarian monarchies, as we now call those 
peoples which once scorned our savage ancestors, estab- 
lished a stable, but unprogressive equilibrium. The East- 
ern Races did not, and they do not to-day, understand what 
we mean by progress ; this constant desire for change and 
upward growth. Change is what they most fear and hate. 
But Greece, Rome, and the Teutonic civilizations are pro- 
gressive equilibriums, where the rights of the social whole 
are being constantly balanced with the rights of each indi- 
vidual member. This makes strong, intelligent and moral 

1 Shall we include Italy also, at last united in 1871 into a great kingdom, and 
at the present time rapidly developing, in her northern states, manufactures, in- 
dustry and commerce, and it is hoped preparing for a great new birth — intellectual, 
artistic and moral? Then there is Russia also — the great unknown. 



64 The Price of Groivth 

freemen, as well as good citizens, but it makes criminals 
also, or at least has made them, till now; and this great 
increase of criminality is a part of the price we are paying 
for growth to better things — for a larger, more abundant, 
more Christ-like life. 



CHAPTER IV 

SAVAGE RACES — IN AUSTRALIA, AMERICA, ASIA AND AFRICA 

Lowest Savage Races. — What little social organization 
there is among lowest savages, is mainly for purposes of 
warfare, offensive and defensive. Their petty villages or 
tribes are almost continually at war with one another. Of 
course there are exceptions, such as the forest Veddahs of 
Ceylon ; but the Veddahs have practically no social organiza- 
tion at all, and no punishment of criminals is found among 
them. These last facts are true also with regard to the mis- 
erable inhabitants of Tierra del Fuego. " Each family circle 
lives apart, and they combine only in small groups against 
some common enemy, but recognize not even a temporary 
leader." If social life does not exist, social punishment for 
crime is of course impossible. 

Among almost all these low savage races, however, there 
is found the head man, or chief, possessed of a small and 
jealously limited authority, that varies with his character and 
warlike prowess. Elders, wise in ancient customs, are nearly 
everywhere in evidence, as are also witch-doctors, or medi- 
cine men, who are both feared and honored. Some of 
these tribes have no form of worship, no idea, apparently, 
of a good Spirit, interested in human welfare. 

They are intensely devoted to their savage liberty, and 
to the absolutely sacred duty of personal blood revenge 
for injury to a man or his family. Every male is a fighter 
and can surely be relied on to defend the common cause. 
Among themselves they are, in general, peaceful, mutually 
helpful and even kindly — in reverential obedience to old an- 

(65^ 



66 Key to Tables 

cestral customs. Incest and evil witchcraft awaken, every- 
where, the most violent abhorrence and bring down speedy 
social vengeance upon the guilty, destroying them, often- 
times with their possessions ; but such true criminals are 
very rare. Instances of treason are not found at all among 
the lowest groups. In those somewhat more highly devel- 
oped, " black treachery" does, most infrequently, occur; or 
at least there is a known social penalty of death or outlawry 
for the offence. Infanticide of twins, weakly or deformed 
children, and the killing of the aged are very generally prac- 
tised ; not to propitiate any demon, but because the group 
cannot afford to be burdened with thoroughly useless mem- 
bers of the community. Aged people, themselves, are the 
last to wish these customs changed, and we can readily see 
how they aid social strength and effectiveness. " They 
know " that the mother could not possibly rear both twins, 
and if the two are boy and girl, such close connection of 
nearest relatives within the womb is abhorrent to them, as 
thoroughly incestuous. 1 

In the following tables R (revenge) stands for a tumult- 
uous, impulsive and speedy vengeance ; while P ( punish- 
ment) represents a deferred, more calm and reasoned pro- 
cedure; but it is very difficult, from scanty evidence, to draw 
such distinctions, and therefore the letter P is generally used. 
However, in all cases of treason, incest and evil-witchcraft, 
the evidence itself is given, and the reader can, if he chooses, 
draw his own conclusions. 

SR = Social Revenge. IR = Individual Revenge. 

SP = Social Punishment. IP = Individual Punishment. 

-S = Ancient social customs, strongly C = Composition: (Pecuniary compen- 

opposed to such conduct. sation). 
P = Punishment. 

spencer and Gillen, p. 52. Danks, p. 292. Turner, pp. 284, 286, 304; 
335-6. 



Savage Races 6 J 

D = Death. M = Mutilation. 

O = Outlawry. W = Whipping. 

H = Honorable. N = No. 

All harms of man to man are shown to be of rare occur- 
rence within these savage groups. The evidence is both 
abundant and conclusive. If tort offences are so infrequent, 
instances of true crimes are far more rare and hard to ob- 
tain, but they can occasionally be found. 1 The location of 
the various races and tribes in the tables, follows, in general, 
the degree of social development attained ; but the order, 
thus determined, does not pretend to any degree of scien- 
tific exactness, nor is it necessary that such should be se- 
cured. 

1 " The rude, rough man, left entirely in a state of nature, is not in himself evil 
and wicked, still less is he so from principle; but he follows blindly the impulse 
of his passions, which lead him to acts, that to us, in the high point of civilization 
we have attained, appear as crimes." Lichtenstein, ii, 51. 



68 



Lowest Human Races 



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5 co l*« H 



Savage Races 69 

TREASON. — Tongans, S. — The natives of Tonga are in- 
tensely loyal, respectful and obedient to their chiefs. The 
respect that is always paid to them " forms the stable basis 
of their government," and is regarded as " a superior sacred 
duty." It is " supposed the gods would punish" disrespect 
to chiefs " almost as severely as disrespect to themselves." 
Public assemblies are held to discuss important matters of 
state. 1 

New Zealanders, SPO. — Outlawry is enforced for a 
very few offences, " black treachery," etc., " so rare as to be 
scarcely worth noticing." 2 "The head, and frequently the 
whole person of a New Zealand chief, is strictly tapu," and 
peculiarly sacred.3 

Tahitians, or Society Islanders^ S P D y or O. — "They had 
no regular code of laws, nor any public courts of justice, 
and, excepting in offences against the king and chiefs, the 
leaders were seldom appealed to. The people in general 
avenged their own injuries. Destitute, however, as they 
were of even oral laws or institutes, there were many acts 
which by general consent were considered criminal and de- 
serving punishment. These were summed up in the term 
orurehan : rebellion, or shaking the government, withholding 
supplies, or even speaking contemptuously of the king or his 
administration. So heinous was this offence that the crim- 
inal was not only liable to banishment, or to the forfeiture of 
his life, but a human sacrifice must be offered to atone for 
the guilt, and appease the displeasure of the gods against the 
people of the land in which it had been committed." 4 

Samoans, S P 0. — " When the chiefs decided on war, every 
man and boy under their jurisdiction old enough to handle 
a club, had to take his place as a soldier, or risk the loss of 
his lands and property, and banishment from the place." 5 

1 Martin, ii, 155, 159. *Tregear, p. 107. 3 Angas, i, 320, 330. 

4 Ellis, iii, 123. 5 Turner, p. 229. 



yo Australian Blackfellows 

INCEST. — Australians, S P D. — The Australian Blackfel- 
lows are in general kindly disposed to other members of the 
same tribe. 1 " In the matter of morality, their code dif- 
fers radically from ours, but it cannot be denied that their 
conduct is governed by it, and that any known breaches are 
dealt with both surely and severely." 2 If a man breaks 
through the strict marriage laws, the elders and head men 
consult long together, and if he is adjudged guilty, they are 
known to have inflicted the death penalty, by means of a 
party organized for this purpose, called an " ininja. 3 " " A 
man in these tribes (Urabenen Tribe, etc.) may be put 

to death for wrongful intercourse connection with a 

woman of the wrong group because it is a serious of- 
fence against tribal laws, and its punishment has no rela- 
tion to the individual." Sexual jealousy is very weak among 
them. 4 

Australians, SP D or 0. — " Chastity," writes Curr, "is a 
virtue beyond the native conception," and the Blackfellows 
exhibit a deplorable lack of moral restraint ; yet cohabitation 
with persons of near kin they regard with a horror which 
" they are unable to analyze or explain." s 

If a man seizes a "gin" (i. e., woman) within the pro- 
scribed degrees, he is punished with death or outlawed by 
the tribe, and can be killed by any one without fear of con- 
sequences. 6 

" Marriage within the class," writes the Rev. John Mathew, 
" is forbidden on pain of death. Even in cases of rape the 
class rules are respected." The profound submission of the 
blacks to " restrictions fettered upon them by tradition, and 
for which they can give no better reason than that such is 
the practice, points to a very powerful originating cause." 7 

1 Spencer and Gillen, p. 32. % Ibid,, p. 46. * Ibid., p. 15. 

* Ibid., pp. ioo and no. See also 492 and 495. 

* Curr, i, 43, 62. • Wyndham. 7 See also Grey, ii, 1 10 and 242. 



Savage Races 71 

Bushmen of Africa, S. — Brothers and sisters, parents and 
children may not marry. 1 

Veddahs, P D. — " There was an ancient custom among 
the Veddahs which has scarcely yet become extinct. It is 
that which sanctions the marriage of a man with his younger 
sister. To marry an elder sister or aunt would in their esti- 
mation be incestuous, a connection in every respect as 
revolting to them as it would be to us." 

They have " the tradition of a man, whose name even? 
has been preserved, and whose family still exists, who, they 
say, was eaten by worms for having exceeded the authorized 
limit, and formed connections with his elder sisters and 
aunts. By whom this punishment was inflicted they do not 
pretend to say ; but the painful death they regard as the 
direct consequence of the incest." 2 

Tasmanians, S. — " All sanguineous connection would be 
illicit or incestuous." 3 

Gilbert Islanders, S P D. — "There was no king, but the 
heads of families met and ruled. The penalty for incest was 
strangulation, and the body thrown into the sea." 4 

Western Tribe of Torres Straits, S. — " Marriage was for- 
bidden to cousins and also to the sister of a man's particular 
friend. "s 

Ths New Britain Group. — " No man may marry a woman 
of his own class. To do so would bring instant destruction 
upon the woman, and if not immediate death to the man, 
his life would never be secure. The nearest relative (male) 
of the woman would immediately seek her and kill her the 
moment he found her. I have been told by natives that 
both man and woman would be killed as early as possible." 
But as a matter of fact, a case of incest (connection within 
the totem) "never occurs in a thickly populated district." 6 

1 Barrow, i, 276. 2 Bailey, ii, 295 and note. 3 Bonwick,p. 62. 

* Turner, p. 295. B Haddon, p. 315. 6 Danks, p. 282-3. 



72 Pacific Islanders 

Northern New Hebrides and Banks Island, S P. — " Irreg- 
ular intercourse between members of the same division is a 
heinous offence ; should such become known, the members 
of the other (totemic) division will destroy the property of 
the one in which the guilt is found, without resistance or 
complaint." J 

New Caledonia^ SPD. — "A law of private revenge al- 
lowed the murder of the thief and the adulterer. In a neigh- 
boring district the parties guilty of adultery" [or more prob- 
ably incest] "were tried, dressed up, fed before the multitude 
and then publicly strangled. A man of the friends of the 
woman took one end of the cord and a man of the friends 
of the man took the other." 2 

Dyaks, S P D t etc. — When incest was committed by the 
Dyaks (Biadju) the whole town was defiled and the crimi- 
nals were deemed deserving of death. Accordingly, they 
were separated in hampers and drowned. 3 

" Incest is held in abhorrence, and even the marriage of 
cousins is not allowed." The land Dyaks heavily fined a 
chief who had married his granddaughter and degraded him 
from the rank of chief. 4 

New ZealanderSy S. — " Anyone outside brother and sister 
could marry, although marriage of first cousins was greatly 
disliked. They seem aware of the weakening effects of the 
"inbreeding" "There are cases in which (especially in 
legend) even these bonds were broken, but not as proper 
social practice." Widespread denunciation and stigma for 
offspring always resulted. 5 

Samoans, S. — Social customs were strongly opposed to 
incest. 6 



1 Codrington, p. 307. * Turner, p. 343. 

8 Perelaer, p. 59. Quoted by Steinmetz, ii, 336. 
*Low, pp. 300-301. See also Brooke, ii., 3. 
§ Tregear, p. 102. * Turner, p. 92. 



Savage Races 73 

Evil- witchcraft. — Australians, S P D. — "Should a 
man of influence and well connected, that is, having numer- 
ous relatives, die suddenly, or after a long illness, the tribe 
believe that he has been killed by some charm. A secret 
council is held and some unhappy innocent is accused, con- 
demned and dealt with by the Pinya" — an " armed band, en- 
trusted with the office of executing offenders," by the coun- 
cil of old men and the chief (1. e., native of superior influ- 
ence: head man). 1 

Australians, S P D. — Among the aborigines of More ton 
Bay .... when one is accused of having caused the death 
of another individual, through sorcery, he is by his own 
tribe delivered over to death. 2 

Australians, S P D. — "There are three bad men in our 
camp whom we Iliaura do not like, they must be killed." 
"Two are iturka " (incestuous: the most opprobrious word 
in their language), "the other is very quarrelsome and strong 
in magic!' The elders accordingly condemned these men, 
enticed them to a certain camp-fire, and let members of 
another tribe kill them, they themselves standing quietly by. 
The two women who belonged to the iturka men were away. 
But the Iliaura men would certainly punish them severely 
and most probably kill them when captured. 3 

Bushmen of Africa, S R D or O. — Among the Bushmen 
there are " people who are considered as magicians, and 
who are believed to have the power of commanding rain, 
wind and thunder, at their pleasure. If, unluckily, one of 
these magicians happens to have predicted falsely several 
times in succession, he is thrust out of the kraal, and very 
likely burned, or put to death in some other way. One of 
the Bojesmans (i. e. Bushmen), who visited the general on 

1 Curr, ii., 53. 

2 Lang, pp. 342, 358. Quoted by Steinmetz, ii., 331. 
8 Spencer & Gillen, pp. 491-5. 



74 Evil- Witchcraft 

this journey, related that such had been the case with his 
wife. Although at first a very great magician, latterly her 
prophecies had all proved false, and she was therefore put 
to death by the rest." 1 

Gilbert Islanders : "Nine, or Savage Island,' S R D. — 
" Of old there were kings, but as they were high priests as 
well, and were supposed to cause the food to grow, the 
people got angry with them in times of scarcity and killed 
them ; and as one after another was killed, the end of it was 
that there was no one wished to be king." 2 

New Guineans, S R D. — In the English part of New 
Guinea there dwells a whole stock of wizards. The other 
natives both abhor and fear them, and, when they dare, per- 
secute and destroy them. 3 

" The Nufoers of New Guinea attribute witchcraft, with its 
results of disease and death, especially to women."* 

New Caledonians, S P D. — " If a man among themselves 
was suspected of witchcraft, and supposed to have caused 
the death of several persons, he was formally condemned. 
A great festival was held"; the face and body of the con- 
victed man was painted black, and he was dressed in flowers 
and shells. " He then came dashing forward .... jumped 
over the rocks into the sea and was seen no more." 5 - 

Dyaks, S R D. — " If a Dyak (Biadju) is thought to be an 
evil wizard, his life is not safe. For the public welfare and 
security it is thought necessary to put him to death, and his 
murder is deemed a praiseworthy act." Among the hill 
Dyaks a wizard is cruelly tortured to death. 6 

The New Zealanders, S. — New Zealanders " all dread cut- 
ting their nails, lest the parings should fall into the sorcer- 
er's hands." 7 

1 Lichtenstein, ii., 61. 2 Turner, p. 305. 
3 Lindt, p. 113. Quoted bp Steinmetz, ii., 330. 

4 Crawley, p. 224. 5 Turner, p. 342. 

6 Perelaer, p. 28. Quoted by Steinmetz, ii, 330. 7 Thomson, i, 317. 



Savage Races 75 

" Some of the aged women among the New Zealanders are 
supposed to possess the power of witchcraft and sorcery." z 

Fijians, SR D. — •" Nearly all sudden deaths are ascribed 
to this cause," i.e., witchcraft. " Persons detected in the 
act of burying these deadly charms are summarily dealt 
with ; or, if found out afterwards, their houses are burnt, and 
they themselves killed. Professed practisers of witchcraft 
are dreaded by all classes, and by destroying mutual confi- 
dence, shake the security and comfort of society. Some of 
these wizards, but not all, are priests." 2 

Hawaiians, S. — They are a very superstitious people ; think 
all death due to the power of evil spirits, poison, or the in- 
cantations of sorcerers, employed by some enemy ; unless 
the deceased are known to have been killed by some act of 
violence. 3 

Javans, S P D. — According to the ancient code of Java, 
which is in force to this day (1820) in Bali, evil witchcraft is 
punished with death to the offender, and " if the matter be 
very clear," — so runs the law — " let the punishment of death 
be extended to his parents, to his children, and to his grand- 
children. Let no one escape ; and let their property of 
every description be confiscated." 4 

OFFENCES OF ALL KINDS WITHIN THE GROUP VERY RARE 

Australians.— ■" A more treacherous race I do not believe 
exists." A stranger " Blackfellow " is always treated as an 
enemy, and killed as soon as possible. Yet within the tribal 
group there is peace, kindliness and mutual aid. They love 
their children and are very tender toward them ; yet murder 
about thirty per cent., including twins and all sickly and de- 
formed infants, social custom demanding this. "They do 
not steal from one another to any great extent. I do not 

1 Angas, i, 317. * Williams and Calvert, pp. 140, 195. 

8 Ellis, iv, 293. * Crawford, i, 57. 



j6 Very Few Offendei's 

remember," writes Lumholtz, " a single instance of weapons 
being stolen ; " and these, with household instruments and 
ornaments are almost all the personal property they possess. 
Adultery is counted the most serious form of theft, and as 
such is punished — the offender having to fight with the man 
whose wife he has stolen. " Within the tribe lovers occa- 
sionally abscond, but they are soon overtaken, and the 
woman cruelly beaten." Lumholtz knew of but two in- 
stances where men eloping were permitted to retain as wives 
women already married in the tribe. 1 

Bushmen. — Adultery is not punished among the Bush- 
men — neither is theft ; they are not addicted to it. A Bush- 
man boasted before Livingstone of killing men, women and 
children of his own people, and thought such deeds manly 
and clever. 2 [Probably they were members of some other 
village or " kraal."] 

Veddahs. — Serious offences are very rarely committed. 
Murder is almost unknown among them. There is great 
conjugal fidelity. They live generally in pairs, and assem- 
ble together only on extraordinary occasions. 3 

Tasmanians. — " They had few crimes against each other. 
Faults not immediately punished were usually overlooked. 
Injuries were soon forgotten." 4 

New Guineans. — " Theft is considered a very grave offence, 
and is of very rare occurrence. Adultery is unknown among 
them."5 

The Western Tribe of Torres Straits. — " As there was no 
recognized government or state, nor any system of religion, 
all crimes were of a purely personal nature, and were indi- 
vidually revenged." Theft was prohibited and was very 

1 Lumholtz, pp. 126, 147. Curr, ii, 45. Spencer and Gillen. 

' Livingstone, p. 159, and Lichtenstein, ii, 194-200. 

s De Butts, p. 149. *Bonwick, p. 10. 

* Earl's Papuans, pp. 80-1. 



Savage Races yy 

rare. " Death was the penalty for infringing the rules con- 
nected with the initiation period, i. e. y for sacrilege;" but it 
does not appear by whom the punishment was inflicted. 1 

Papuan Islanders. — " These simple Arafuras, without 
hope of reward or fear of punishment after death, live in such 
peace and brotherly love with one another that they recog- 
nize the right of property in the fullest sense of the word ; 
without there being any authority among them other than 
the decisions of their elders, according to the customs of 
their forefathers, which are held in the highest regard." 2 

New Caledonians. — A law of private revenge allowed the 
murder of the thief and the adulterer. 

Dyaks. — " The Dyaks' minds are as healthy as their 
bodies ; theft and brawling and adultery are unknown among 
them. "3 

" Adultery is a crime unknown and no Dyak ever recol- 
lected an instance of its occurrence." 4 

Sumatrans. — Theft among the Sumatrans is almost un- 
known. It is compounded for by double value. Adultery is 
of rare occurrence, and is punished by fine. There is no 
distinction between wilful murder and manslaughter. The 
compensation to the family is the same in both cases. 5 

Ta/utians. — " Theft is practiced, but less frequently among 
themselves than toward their foreign visitors. Among 
themselves, if detected, the thief experienced no mercy, but 
was often murdered on the spot." Adultery is sometimes 
punished with death. 6 

In Otahite " every man seems to be the sole judge of his 
own actions, and to know no punisment but death, and this 
perhaps is never inflicted but upon a public enemy. 7 

x Jour. Anth. Inst., 1899, pp. 314, 316, 335. 

1 Earl's Kolff's Voyages of the Dourga, p. 161. 

•Boyle, p. 235; also 91. * Low, p. 300. 

6 Marsden, pp. 188, 207-10, 223. 6 Ellis, iii, 125. 7 Cook, p. 100. 



\1 



yS North and South Americans 

Hawaiians. — " Murder is very rarely committed by the 
natives." Theft among themselves is severely punished by 
individual revenge. 1 

Samoans. — Theft, murder and adultery were punished by 
individual revenge, or, in the case of murder, by outlawry 
and forfeiture for those who fled. For adultery, the eyes 
were taken out, or nose and ears bitten off. The thief was 
killed. Both murder and adultery were very rare. 2 

NORTH AND SOUTH AMERICANS. 

The Indian tribes of North and South America are groups 
of relatives, by birth or by adoption. Kinship has always 
been the fundamental bond holding them together. The 
main social requisites for survival were success in war and 
on the hunting field. These were the savage virtues of the 
race. The " brave," who took many scalps and killed many 
buffalo to share among his friends was a good man, and 
would become a chief. The traitor, the coward, the ineffi- 
cient hunter, the evil-wizard, and the incestuous fellow — 
these were essentially bad Indians. Goodness consisted in 
the performance of good social actions, and not at all in the 
intention and moral nature of the man, and badness was 
the exact opposite of their idea of goodness. The standard 
was essentially a social one, determined by the social needs 
of the race. 

When food was plenty, all ate and rejoiced; when there 
was famine, all suffered together. Each had his share of the 
joy and woe that came to the common life. The great 
council of the tribe met to discuss and decide those most 
weighty problems which affected the whole community, such 
as the making of war or peace, and the trial of most heinous 
criminals. In these councils even the women of some tribes 

1 Ellis, iv, 420. 2 Turner, pp. 178-9. 



Savage Races 79 

had a voice and a vote. Chiefs were elected and possessed 
but little authority, except when leading war parties. None 
but the great council could condemn a fellow-tribesman to 
death, and social outlawry was a dreaded penalty among 
them. True criminals were very rare. Violent in his love 
of liberty, every Indian revenged his own injuries, or called 
upon his family to help him, as ancient custom demanded; 
unless the clan or clans most interested induced arbitration 
and composition for the offence, thus warding off reprisals 
and the terrible blood feud. But among the Indians, we do 
not find anywhere that increasing social pressure for peace 
and domestic security had made composition compulsory. 
The man who refused to purchase forgiveness, or to relin- 
quish his time-honored right of vengeance, was not yet a 
criminal. Few, indeed, were the offences socially punished, 
even among the most highly developed and progressive 
of Indian races — the Iroquois. Prominent among the crimes 
stand out the three great fundamental wrongs against the 
tribe — treason, incest and evil-witchcraft. Everywhere 
among North American races, including even the peace-lov- 
ing Esquimaux, and their relatives, the Aleuts of Alaska, we 
find direct evidence of intense social abhorrence and the 
public infliction of the death penalty for these evil acts. We 
know less about the tribes of South America, but there also 
the evidence all tends in the same direction. A few other 
misdeeds are occasionally punished by a social group here 
and there; such as the breach of hunting and fishing regula- 
tions among the Omahas (SPO) and among the Aleuts; 
cowardice among the Chinooks (SPD); cannibalism (S P 
D) among the Ojibways and other northern Indians; and 
sacrilege among the Aleuts. The Omaha Indians are known 
to have inflicted the social punishment of outlawry upon a 
merely malicious and thoroughly quarrelsome fellow, who 
had committed, apparently, no overt act of wrong — thus 



80 Murder as Crime 

reminding us strongly of similar procedure among animals. 1 
The council of the Iroquois punished women convicted of 
adultery by a public whipping, and the evidence seems to indi- 
cate that among both the Araucanians and Caribs immediate 
social vengeance brought death upon the guilty pair; but it 
seems probable that these last were cases of incest rather 
than adultery. Among the Dakotas " there are some in- 
stances where a murderer has been put to death by author- 
ity of the Council." Probably these were instances of parri- 
cide, fratricide, or the murder of a noted chief. 2 

1 An instance of such social punishment of a very quarrelsome individual oc- 
curred also in the Iliaura tribe of Australian Blackfellows. 
3 Schoolcraft, ii, 183. 



Savage Races 



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82 Treason 

Treason. — Aleuts of Alaska, S P D. — " The betrayer of 
the secrets of the community was punished with death." 1 

Aht Indians of Vancouver Island, S, — " Sincere in friend- 
ship " and " devotedly loyal to his own tribe." 2 

Wyandots, S P D. — " Treason consists in revealing the 
secrets of the medicine preparations, or giving other informa- 
tion or assistance to the enemies of the tribe, and is punished 
with death. The trial is before the council of the tribe." 3 

Ojibways, S. — " The fear of the nation's censure acted as 
.a mighty bond, binding all in one honorable compact." 4 

Dakotas, S P D. — " The chief has no authority to act for 
the tribe and dare not do it. If he does, he will be severely 
beaten, or killed at some future time." 5 

Iroquois, S P D. — "If any person was guilty of treason, 
or by his character and conduct made himself obnoxious to 
the public, the council of chiefs and old men held a secret 
session on his case, condemned him to death and appointed 

some young man to kill him Acting by authority, 

he could not be held answerable " to the relatives of the 
slain. "The council, however, commonly obviated all diffi- 
culty (of punishing the traitor) in advance, by charging the 
culprit with witchcraft, thus alienating his best friends." 6 

Araucanians, S R D. — " The criminal who is convicted of 
a capital offence is immediately put to death. Such offences 
are treachery," etc. 7 

Incest. — Esquimaux, S. — " Marriage between children of 
the same family, or even near relatives, is altogether inad- 
missible, and it is preferred that the contracting parties 
should belong to different settlements, which is, of course, a 
very sensible custom." 8 

" If a boy and girl, although in no way related, have been 

1 Petroff , p. 152. * Sproat, p. 151. 3 Powell, p. 67. 

* Cop way, p. 141. * Schoolcraft, ii, 182. 6 Parkman, p. lxiii. 

7 Thompson's Alcedo, i., 405. 8 Nansen, ii., 330. 



Savage Races 83 

brought up in the same family, they are looked upon as 
brother and sister, and are not allowed to marry." 1 

Aleuts of Alaska, S P D. — " Incest was considered the 
gravest crime, and was punished with great severity." 2 

The A Jit Indians of Vancouver Island, S. — " By the old 
custom of the Aht tribes, no marriage was permitted within 
the degree of second cousin. Intermarriage with other 
tribes is sought by the higher classes to strengthen the for- 
eign connections of their own tribe, and, I think also, with 
some idea of preventing degeneracy of race." 3 

Wyandots, S. — " Marriage between members of the same 
gens is forbidden." 4 

Ojibways, S P D. — The Ojibways formerly punished mar- 
riages among members of the same totem with death. 5 

Dakotas, S. — Dakota nations " will not allow marriage in 
the same totem." 6 

Iroquois, S. — " At no time in the history of the Iroquois 
could a man marry a woman of his own tribe, even in an- 
other nation. All the members of a tribe were within the 
prohibited degrees of consanguinity; and to this day, 
among the descendants of the Iroquois, this law is relig- 
iously observed." 7 

Potawatamis, S. — "An incestuous connection was at all 
times considered as highly criminal, but no punishment was 
attached to it." Several instances are given of the offence 
by chiefs. " But all these connections are held in utter ab- 
horrence by the nation at large." 8 

South American Indians, Tupis, S. — The word " Atouras- 
sap " signifies " a friend who is loved like a brother. The 
tie was held as sacred as consanguinity, and one could not 
marry the daughter or sister of the other." 9 

1 Jour. Eth. Soc. (1848), i., 148. See also Crantz, i., 147. 

2 Petroff, p. 155. s Sproat, p. 99. * Powell, p. 63. 5 Warren, p. 42. 
•Burton, p. 132. 7 Morgan, p. 325. "Keating, p. 114. 
• Southey, i., 240, and Waitz, iii., 422. 



84 Death to the Witch 

Abipones, S. — "The Abipones, instructed by nature and 
the example of their ancestors, abhor the very thought of 
marrying any one related to them by the most distant tie of 
relationship." x 

Guaranis, S. — " Marriage with the most distant relatives 
they shun as highly criminal." 2 

Araucanians, S. — " In their marriages they scrupulously 
avoid the more immediate degrees of relationship." 3 

Caribs, S R D. — " When father and daughter were de- 
tected in incest, the punishment was the stake, where they 
were burnt alive, or torn in a thousand pieces." 4 

Evil-witchcraft. — The Greenland Esquimaux, S R D, 
— "Their procedure with witches is very short. If a rumor 
prevails that a certain old woman is a witch, because the 
poor old creature made pretences to charms and quackery, 
all the country will join to stone her, or she will be thrown 
into the sea, or hewn to pieces, according as their rage dic- 
tates to them." 5 

Aht Indians of Vancouver Island, S P D. — " All the 
people live in constant apprehension of danger from the un- 
seen world. An instrument called min-okey-ak was sup- 
posed to be thrown from an unseen hand and the person 
struck by it sickened and died. No one was allowed to live 
who knew how to make the min-okey-ak." The last person 
who possessed this knowledge among the " Obyahts — the 
tribe from which I derived the information — was a young 
man of a family of eight men, and it was resolved at 
a meeting of the chiefs, that the whole family should 
be exterminated." Accordingly all the men were killed 
and all the women sold into slavery, and the house and 
property of the family destroyed. Since then, " no one 

1 Dobrizhoffer, ii., 212. 2 Dobrizhoffer, i., 63. 

•Smith. 4 De Rochefort. 6 Crantz, i., 194. 



Savage Races 85 

among the Ohyahts has known how to make the min-okey- 
ak." « 

Wyandots, S P D. — " Witchcraft is punished by death, 
stabbing, tomahawking or burning. Charges of witchcraft 
are investigated by the grand council of the tribe." 2 

Ojibways, S P D or I R D. — " Formerly, when any notor- 
ious necromancer was suspected of having bewitched any 
one, he was often condemned by the councils of the dif- 
ferent tribes to execution ; but this was done always with 
great caution, lest the conjuror should get the advantage 
over them and thus bewitch the whole assembly." Some- 
times " a relative of the person thought to be bewitched 
will go secretly and put the necromancer to death." 3 

Chinooks, S P D or I R D. — The chiefs believe themselves 
and their sons too important to die in a natural manner, and 
" whenever the event takes place, they attribute it to the 
malevolent influence of some other person, whom they fix 
upon .... frequently selecting those the most dear to 
themselves or the deceased. The person so selected is sac- 
rificed without hesitation." 4 

Iroquois, S P D. — "Witches, with whom the Hurons and 
Iroquois were grievously infested, were objects of utter 
abomination to both, and anyone might kill them at any 
time." 5 

"Witchcraft was punishable with death. '\ "Witnesses 
were called and examined, and if they established the charge 
to the satisfaction of the council, which they rarely failed to 
do, condemnation followed with a death sentence." 6 

Chippewayans, S. — The death of a chief was generally 

1 Sproat, p. 158, 175. All the chiefs of the tribe are chosen by the people 
and act as their representatives. Ibid., p. 187. 

2 Powell, p. 67. 3 Jones, p. 146. 

* Kane, p. 177. ' Parkman, p. lxiii. 

• Morgan, pp. 330, 333. 



86 A Dangerous Profession 

believed due to evil conjuration of " some of their own 
countrymen," or enemies of other tribes. 

South American Indians- — Abipones, S. — "The jugglers 
are commonly thought to be the authors of disease, as well 
as of death, and the sick Abipones imagine that they shall 
recover as soon as ever these persons are removed/' x 

Brazilians, S R D— u The misfortunes, sickness and death 
of the neighbors are often ascribed to his (the South Brazil 
paje's) sorceries, and he then atones for his practises with 
his life." 2 

Patagonians, S R D. — " The profession of wizards is very 
dangerous, notwithstanding the respect that is sometimes 
paid to them ; for it often happens, when an Indian chief 
dies, that some of the wizards are killed ; especially if they 
had any dispute with the deceased just before his death ; the 
Indians, in this case, attributing the loss of their cacique, i. e. f 
chief, to the wizards and their demons." The same occurs 
in times of pestilence. 3 

Araucanians, S R D. — They are great believers in witch- 
craft, and " most unwilling to have tneir portraits taken, lest 
the one having possession of it may kill or injure the one 
represented. There is the same superstitious dread about 
revealing their names, lest the one knowing it acquire super- 
natural power against them." 4 

" Justice is administered in a tumultuous, irregular manner. 
The criminal who is convicted of a capital offence is imme- 
diately put to death. Such offences are witchcraft," etc. 
"Those accused of sorcery are first tortured by fire, and then 
stabbed with daggers." 5 

1 Dobrizhoffer, ii, 223 and 226. s Spix and Martius, ii, 244. 

8 Fitz Roy, ii, 163. * Smith, p. 222. 

'Thompson's Alcedo, i, 405. 



Savage Races 87 

OFFENCES OF ALL KINDS WITHIN THE GROUP VERY RARE. 

Esquimaux. — They are a very peaceful folk, and quarrels 
among them are very rare. " Theft from members of his 
household or settlement is regarded as an abomination, and 
is very seldom practiced." " The pacific disposition of the 
Eskimo makes murder a very rare occurrence, and the slaying 
of a fellow creature is considered a great barbarity." When 
an Eskimo refrains from adultery with another man's wife, it 
is from desire not to fall out with the man, " rather than 
that he sees anything wrong in the act." " 

"The Innuits among themselves are strictly honest." 2 

The Aht Indians of Vancouver Island. — This people is 
" very degraded and exceedingly revengeful," yet " the 
members of an Aht tribe live together in much social har- 
mony. The men rarely quarrel except with their tongues,, 
and a blow is seldom given." If struck in anger " it must 
be paid for next day with a present, unless the striker chooses 
to leave the dispute open," when an " implacable family 
feud" results. 

" I have never witnessed a fight between sober natives, and 
quarreling is also rare among the children. Larceny of a 
fellow tribesman's property is rarely heard of, and the ag- 
gravation of taking it from the house or person is almost 
unknown. "3 

Comanches. — " There are not many private wrongs perpe- 
trated among them, and family or personal feuds seldom 
arise. They live together in a degree of social harmony, 
which contrasts strikingly with the domestic incidents of 
some pseudo-civilized communities that vaunt of their en- 
lightenment." 4 

Ojibways. — " Murder is seldom heard of among them." 

1 Nanscn. ii, 329, 335-6. 3 Hall, ii, 312. 

4 Sproat, pp. 51, 153, 159 and 186. * Schoolcraft, i, 231. 



88 Mutual Good Will 

" The old men all agree in saying that before the white 
man found and resided among them, there were fewer mur- 
ders, thefts and less lying, more chastity in man and wo- 
man." x 

Dakotas. — " Among the Dakotas I never knew an instance 
of blood being shed in any disputes or difficulties on the hunt- 
ing grounds." Instances of theft are mostly among women 
and children. The men say it is too low a practice for them. 2 

Iroquois. — " Crimes and offences were so infrequent under 
their social system that the Iroquois can scarcely be said to 
have had a criminal code." 3 

" It was only in rare cases that crime among the Iroquois 
or Hurons was punished by public authority." 4 

Chippewayans. — Theft is " extremely rare among them." 5 

South American Indians.. — Tupis. — " Boys rarely or never 
quarreled among themselves, although no other principles 
were inculcated than those of revenge and hatred. Savages 
are seldom quarrelsome when they are sober; and among the 
Tupis the feeling of good-will toward each other was so ha- 
bitual that they seem not to have lost it even when they were 
drunk. De Lery lived among them a year, and witnessed 
only two quarrels. But if, on these occasions, any injury 
was inflicted, the law of retaliation was rigorously executed 
by the kinsmen of the sufferer. 6 

Abipones. — " Another admirable trait in the character of 
the savage Abipones is their conjugal fidelity. You never 
hear of this being shaken or even attempted." 7 

Guiana Indians. — Adultery of married women is very 
rare, probably because of the fearful punishment inflicted. 8 

The Indians of Guiana are not addicted to stealing. 9 

Araucanians. — This people, notwithstanding their propen- 

1 Schoolcraft, ii, 139. 2 Ibid., ii, 184-5. 3 Morgan, p. 330. 

4 Parkman, p. lxi. 5 Franklin, p. 156. 6 Southey, i. 240. 

7 Dobrizhoffer, ii, 213. 8 Humboldt, ii, 266. 9 Brett, p. 348. 



Savage Races 89 

sity to violence, rarely employ arms in their private quarrels, 
but decide them with the fist or with a club. 1 



ASIATICS. 

Among the " hill tribes of India," some, like the Gonds 
and Santals, have a numerous population of from one to 
three millions and live in comparative peacefulness, under a 
foreign domination, which has not attempted to change much 
their ancient customs and mode of life. The rest are " un- 
mitigated savages," wild forest rangers, few in number, very 
loosely organized for war and pillage, with no recognized 
head or chief for any of their tribes, except, perhaps, the 
Bheels. 2 Dwelling in little migratory village groups of from 
twenty-five to a few hundred people, they are very demo- 
cratic and often sociable among themselves ; yet intensely 
devoted to a ferocious liberty, whose cardinal principal is re- 
venge — deep, bloody revenge — for every personal injury, in 
accordance with their ancient customs. 3 

" A Karen always thinks himself right in taking the law 
into his own hands, for it is the custom of the country, which 
has the effect of law. He is never interfered with, unless he 
is guilty of some act contrary to Karen ideas of propriety, 
when the elders and the villagers interfere and exercise a 
check upon him." 4 

Beyond the limits of each Khond hamlet, or group of re- 
lated villages, " all is discord and confusion ; everywhere is 
seen an incipient or a dying feud," yet within the group 
" order and security prevail," and there is unfaltering devo- 

1 Thompson's Alcedo, i, 406. 
'Forsyth's Report, v. 154. 

3 For Nagas: Stewart, J. A. S. B. xxiv, 609; For Karens: Mason, J. A. S. B. 
xxxvii, pt. ii, 145; For Mishmis: Rowlatt, J. A. S. B. xiv, 491. 

4 Mason, J. A. S. B., xxxvii, pt. ii, 145. 



90 Co7npensation for Harms 

tion to the common cause. Thus there is no room for 
treason. 1 

The elders have for centuries been striving to limit the in- 
stinctive passion for vengeance to the harmful acts of men 
of other villages or hostile tribes ; and have been entirely 
successful in introducing the custom of composition for 
offences among fellow townsmen, which very rarely occur; 
and even in making the seeking and offering of the atone- 
ment compulsory, upon pain of social outlawry, for him who 
will not yield himself to this demand. The evil-doer who 
does not or will not make composition for his offence, be- 
comes a criminal, — not because of the murder or theft he may- 
have committed, for that is only an unfortunate harm to an 
individual or family, but because he will not do his best to 
restore peace to the community by preventing a bloody feud ; 
because he will not submit to the social pressure for the gen- 
eral welfare. 

Among all the hill tribes of India, and also among the sav- 
age hordes of northern and central Asia and the Bedouin 
Arabs of the desert, immemorial ancient customs take the 
place of laws, regulate the simple relations of man with man, 
and are religiously observed. Many of these customs teach 
the terrible duty of blood revenge, of unrelenting family 
feuds ; but there are others which foster intense social abhor- 
rence of a few actions ; i.e., treason or treachery to the com- 
munity, incest between near relations, and evil-witchcraft — 
that is sorcery, practiced within the group, aiming at the 
destruction of a fellow tribesman and thus breeding mutual 
distrust and fear. Intense devotion to these ancestral cus- 
toms makes the offender against them an exceedingly rare 
type of man — so rare that it is very difficult to find instances 
of his existence — but when such an one is discovered, the 

1 Macpherson's Report, pp. 42, 52, and Campbell, p. 239. 



Savage Races 91 

violent abhorrence awakened by his act brings down upon 
him a speedy and ferocious social punishment. 

We must believe, therefore, that among these low and 
densely ignorant savage races, there are a few most heinous 
offences, punished by the collective might as wrongs against 
foundation principles of social life. Such are treason, incest 
and witchcraft. Refusal to preserve the folk peace by the 
seeking and giving of composition — in lieu of vengeance — 
has also more recently been made a crime in many tribes ; 
after centuries of social pressure. All harms of man to man 
within the little group are rare, prevented primarily by fear 
of the blood feud ; but far more rare are true crimes — 
wrongs to the whole community — and yet the criminal is 
occasionally found and punished among them. 



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Savage Races 93 

SOCIAL PUNISHMENT FOR THE MOST SERIOUS CRIMES. 

Bheels, S R D. — The Bheels are unmitigated savages, liv- 
ing in small village groups, of from 25 to 50 people, organ- 
ized for plunder, like the monkeys. There is absolute fidel- 
ity to their native chiefs, with no idea of the possibility of 
choice on their part. Therefore treason is unknown among 
them. The natural instinct of the Bheels leads them to indi- 
vidual or family revenge for murder, robbery and theft; but 
after their first wild rage has spent itself, resort is had to 
Punjayets, or councils, which " often consist of several hun- 
dred members." These councils make the best terms they 
can for the guilty party, by inducing the acceptance of a 
composition or atonement, in lieu of the infliction of ven- 
geance. The offences dealt with are torts, or harms of man 
to man — not regarded as wrongs against the tribe. Ancient 
customs guide them. ''Fines in cattle or money are high 
for murders, but Bheel Punjayets never inflict death." How- 
ever, " if the crime committed be of so atrocious a nature as 
not to be compounded or forgiven, the culprit is pursued 
and destroyed by those whom this act has made his ene- 
mies ; but he must be put to death in what they term an 
affray, that is, in warm blood ; to take the life of each other 
coolly is revolting to their usages." x These last "atrocious" 
offences are probably true crimes. 

Mts/imzs, S R D. — The Mishmis are semi-nomads, dwell- 
ing in little village groups. They are " a hospitable and 
even social race," indulging in a constant round of festivity. 
Every clan has a nominal head, or " gam," but his power is 
extremely limited. " Theft is punished by a fine inflicted by 
a meeting of all the gams ; if the fine is not paid, or the 
offender refuses to pay, he is slain in a general attack, being 
cut up by the company assembled," " Murder is punished 

1 Malcolm, i, 576-7. 



94 Outlawry 

in the same way, but by a heavier fine. Adultery, against 
the consent of the husband, or at least elopement, is pun- 
ished with death." x 

The Mishmis seem to have reached the stage of compul- 
sory composition for individual offences, which we shall find 
very prevalent among the Anglo-Saxons, after Alfred's 
time. Social pressure compels the injured man to seek and 
accept an atonement for the evil done him, unless he prefers 
to drop the whole matter. When judgment is given against 
the accused by the vote of the popular assembly, he must 
pay the fine, in compensation to the man or family he has 
harmed, or become a public criminal (an outlaw), and, when 
present, " he is slain in a general attack, being cut up by the 
company assembled." It is his refusal to pay the atonement 
and thus preserve the peace of the community, that makes 
him a criminal ; not the murder or theft committed. 

Santahy S P O. — The Santals number one and a half to 
two million people, and are only " half savages." Caste is 
unknown among them, and they are " sociable to a fault 
among themselves." The village elders meet to discuss 
public affairs and to punish the guilty. " So strong is the 
family feeling that expulsion from the clan is the only form 
of punishment known. Other clans will not receive the out- 
cast." The idea of the destruction of the ties of kindred is 
" insupportable to the Santal." However, " for minor 
offences" reconciliation with his people is easily obtained by 
" twenty gallons of beer, and about ten shillings, to buy the 
materials of a feast for his clansmen. In more heinous cases, 
the difficulty of reconciliation is so great that the unfortu- 
nate man yields to his destiny, and, taking with him his bow 
and arrows, departs into the jungle, whence he never returns. 
A woman, once fallen, cannot regain her position." 2 

1 Griffith's Journals, p. 35 et sea. * Hunter, i, 202-3. 



Savage Races 95 

Among the Santals also, we find the practice of compul- 
sory composition for minor offences, following on the public 
threat of banishment, or outlawry. It is doubtful whether 
the fine is paid to the family harmed, or to the entire com- 
munity. For "heinous" crimes the dread doom of out- 
lawry is socially enforced, and how terrible is the punish- 
ment may be judged from the quotation given. 

Bodo and Dhimals, S P O. — These people are semi-no- 
madic forest-dwellers, in little village communities of from ten 
to forty households, owning a voluntary obedience to their 
chief, or Gra. Offenders against ancient " customs are ad- 
monished, fined or excommunicated, according to the degree 
of the offence," by the Gra, a few elders and the village 
priest. 1 

Here we have much the same judicial procedure as among 
the Santals — composition for minor offences and excommu- 
nication, which is more than the equivalent of outlawry, for 
serious crimes. Individual punishment is customary in 
cases of adultery, the delinquents being beaten by the injured 
husband. 

Treason — Kzikis, S R D. — " The only crime punishable 
by death among the Kukis was high treason, or an attempt 
at violence on the person of the king, and treacherous com- 
merce with an enemy of the clan. The victim in these cases 
was cut to pieces with dhaos, but, of course, no such ex- 
treme measures can be resorted to by them in the present 
day." 2 

Turkomans, S P D or C. — The Turkomans (Circassians), 
during their wars with the Russians in the beginning of this 
century, punished the traitor with death, the slavery of his 
whole family, or the confiscation of all the possessions of the 
guilty ones. The profits of this punishment were divided 

1 Hodgson, Kocch y Bodo and Dhimals, p. 159. 

2 Stewart, J. A. S. B., kxir, 627-8. 



96 The Kazi el Arab 

between the revealers of the plot and those who aided in in- 
flicting the punishment. Sometimes the death penalties 
could be bought off for two hundred rubels. 1 

Kalmucks, S P D etc. — The written laws of the Kalmucks 
have penalties against: 1. Chiefs who stir up strife or neg- 
lect to quell disturbances ; 2. Cowardice and incompetency 
in battle ; 3. Neglecting to provide post-horses, etc., for gov- 
ernment couriers. The most serious crimes are punished by- 
death, mutilation or slavery. 2 

Bedouin Arabs, S P O or D. — The Bedouins are said to 
have attained the highest possible development of the pas- 
toral life. Among them, the fiercest, strongest and most 
crafty rule. Then " there is the terrible blood feud, which 
even the most reckless fear for their posterity." The revealed 
law of the Koran is openly disregarded, as not meant for 
desert folk. But amid this ferocious development of individ- 
ual liberty, exist the immemorial customs of the " Kazi el 
Arab," which " form a system stringent in the extreme," and 
are generally adhered to strictly. 

" Grave offences of some kinds are punished with death." 
In capital proceedings the trial lasts many days — witnesses 
are sworn in, and appeal is granted from lower to higher 
courts, as is also a delay or respite after conviction; Be- 
heading is the customary penalty. " A chief who has drawn 
the bond of allegiance too tight is deposed or abandoned. A 
man who has disgraced himself by a breach of their species 
of morality is shunned by his whole tribe, and is finally 
forced to leave it as an outcast." Here is true social punish- 
ment. 3 

Incest. — Hill Tribes of India, Todas, S. — "There are de- 
grees of kinship within whose limits the union of the sexes is 
held in actual abhorrence." 4 

1 Bell, i, 237, and ii, 141, 161. a Pallas, i, 193-218. 

3 Burton, El Medinah, ii, 86-7. * Marshall, p. 220. 



Savage Races 97 

Kukis, S. — "The most strict rules exist, forbidding too 
close intermarriage in families; cousins cannot be so 
allied." 1 

Khonds, S P D. — " Intermarriage between persons of the 
same tribe, however large or scattered, is considered inces- 
tuous and punishable with death/' 2 

Ndgas, S P. — " The social rules and penalties by which 
individual life in a Naga village is regulated, include prohibi- 
tions to marry within a man's own khel," i. e. y group of kin- 
dred or clan. 3 

Bodo and Dhimals, S. — " Neither Bodo nor Dhimal can 
marry beyond the limits of his own people, and if he does he 
is severely fined. Within those limits only two or three of 
the closest natural ties are deemed a bar to marriage." 4 

Gonds, S. — Subdivisions worshiping exactly the same gods 
cannot intermarry. 5 

Santals, S. — " No man is allowed to take a wife of his own 
clan." 6 

Central and Northern Asiatic Races. 

Kalmucks, S. — " They have a strong objection to marry- 
ing within their own families or tribes, considering all the 
descendants of one father or head of a tribe as brothers and 
sisters, however distant their actual relationship may be. So 
universal is this custom, says the writer (Rev. W. Swan), 
that I never knew or heard of an instance of its being vio- 
lated." 7 

Ostyaks, S. — "The Ostyaks deem it as a great sin and 

1 Stewart, Jour. As. Soc, Bengal, xxiv, 640. 
s Spencer's Descriptive Sociology, Asia. 

3 Godden, Jour. Anlh. Inst., 1897, pp. I0 7> J 73« * Hodgson, p. 159, 

i Report Jubbulpore Expedition, ii, 58. See Spencer's Descriptive Sociology t 
Asia, p. 9. 
• Hunter, i, 202. ' Michie, p. i88 # 



98 Imaginary Poisons 

shame to marry relatives, so that bride and bridegroom are 
always of different clans." x 

Kamtschadales, S. — Marriage is prohibited only between 
father and daughter, mother and son. First cousins marry 
frequently, Divorce is easy to obtain. Yet " when a 
Kamtschadal resolves to marry, he looks about for a bride in 
some of the neighboring villages, seldom in his own." 2 

Evil-witchcraft. — " The belief in witchcraft is common 
to almost all classes in India." 3 

Bheels and K/ionds, S P D. — Serious disease or death 
" they invariably attribute to the evil influence of a Dhakan 
or witch." They consider it their duty to detect this Dhakan 
by various ceremonies, music, peacock's feathers, etc. " In 
some cases more cruel means are used." Burning or drown- 
ing are the penalties for those convicted. 4 

Karens, S P D or Slavery. — " It is considered a meritor- 
ious deed to put to death one guilty of poisoning:" i. e. f 
evil-witchcraft. " If such " imaginary poisons "are found on 
a man, he is sometimes, by the voice of the people, bound 
and spread out in the sun three days," his poisons destroyed, 
and he must " swear the most solemn oaths that he has no 
more and will never procure more ; or he is sold into 
slavery." 5 

Gonds, S P O. — The belief in witchcraft is strong, and the 
modes of testing a witch various. They beat the suspected 
woman with castroil rods, and if she feel pain they believe 
they have found the witch ; or they throw her, bound hand 
and foot, into deep water, when, if she swim, she is surely 
guilty. Men are sometimes considered wizards, but this is 

1 Bastian, iii, 299. 

'Grieve, pp. 212-215. See Spencer's Descriptive Soc. Asia, p. 10. 

* Malcolm, Trans. Roy. As. Soc. y i, 84 note. 

* See above, and also Campbell, pp. 44-46. 

* Mason, J. A* S. B., xxxvii., 149. 



Savage Races 99 

comparatively rare. 1 A man convicted of killing a fellow 
Gond by sorcery is expelled from the district, and his prop- 
erty is destroyed. 2 

Ce7itral Asiatic Races — Kalmucks, S P. — The Kalmucks 
have a written law, or rule, with penalties, against the prac- 
tice of sorcery. 3 

OFFENCES OF ALL KINDS WITHIN THE GROUP VERY RARE. 

Todas. — Among the Todas there is great " respect for 
rights of meum and tuum." 4 

Kukis. — " Heinous crimes are very infrequent among 
these people. Theft is almost unknown." 5 

Khonds. — " While within each tribe order and security 
prevail, beyond all is discord and confusion ; everywhere is 
seen an incipient or a dying feud." ° 

Nagas. — " Correctly speaking, there is not the shadow of 
a constituted authority in the Naga community, and wonder- 
ful as it may seem, this want of government does not lead to 
any marked degree of anarchy and confusion." Differences 
rarely occur between two men of the same village. They 
are honest people. 7 

Mishmis. — " Laws and punishments seem scarcely to exist, 
and with the exception of murder and abduction, no other 
crimes against each other appear of common occurrence.'' 8 

Bodo and Dhimals. — " Crimes of a deeper dye are almost 
unknown, and breaches of the peace very rare." 9 

Gonds. — The Gonds are not naturally given to crime. 
Adultery very rarely occurs. 10 

1 Spencer's Descriptive Sociology — Asia, p. 36. 2 Dalton, p. 283. 

1 Pallas i, 193, etc. * Harkness, p. 17. 

5 Stewart, J. A. S. £., xxiv, 627. • Macpherson's Report, p. 42. 

7 Stewart, % A. S. £., xxiv, 608 and 610. 

8 Rawlatt, 7. A. S. £.,x\v, 491. 

9 Hodgson, Kocch, etc., pp. 158-9. 
18 Forsyth's Highlands, pp. 149, 155. 

Lore. 



ioo The Coming of the King 

Santals. — " Among the pure Santals crime and criminal 
officers are almost unknown." x 

Kalmucks. — I never knew or heard of an instance of 
incest, to which they have strong objections. 2 

Theft is infrequent among them. 3 

Kamtschadales. — " In spite of extreme poverty, they are 
an example of honesty." 4 

AFRICANS. 

The population of Africa is much more numerous than 
that of any of the lands we have been studying, and the 
negro races have risen to a somewhat higher plain of social 
development. 5 Everywhere, among them, we find a strong 
trend toward the monarchical form of government, which 
has culminated, among the more intelligent and progressive 
peoples, in a tyrannical despotism, which is, in theory, abso- 
lute. In practice, however, the king is greatly limited by 
the ancient social customs of the race, which he has sworn 
to observe and to defend ; and by the power of the tribal 
chiefs, who are collectively far too strong for him, although 
his vengeance often falls upon them individually. An at- 
tempt to cast aside these ancestral usages, which the people 
love and cling to, has been known to cost a most powerful 
ruler his throne — which must mean also his speedy death, 
at the hands of those he has made his enemies. 

That despotic monarchy has greatly aided the general 
welfare, there can be no doubt; for it has united into a more 
or less compact and orderly nation, many little warring 
tribes of the same racial stock, thus bringing mutual aid and 
military effectiveness — their greatest social need. Most na- 
turally, this development of royalty has occasioned an exten- 

1 Hunter, i, 217. 2 Michie, p. 188. 

3 Pallas, i, 105. * Krusenstern, ii, 254. 

5 Some of the Asiatic peoples mentioned are exceptions. 



Savage Races 101 

sion of the crime of treason — that wrong against warlike 
strength and unity — to protect the person and authority of 
the king, and make even the tokens of his government sacred 
and inviolable. The growing despot, supported by the peo- 
ple, as defender of themselves and of their ancient customs, 
becomes not only leader in war and judge in peace, but he 
and his whole family are surrounded by a ceremonial of re- 
ligious reverence and dread, which must be observed most 
strictly, upon pain of death or other true social punishment. 
Thus he unites in his single person the three great attract- 
ions toward respect and obedience, found instinctive in every 
savage breast. 1 He becomes the embodiment of the great 
socializing forces of the race, and the welfare of his people 
becomes linked, indissolubly, for many centuries, with the 
power and welfare of their kings. But even the king is pun- 
ished as a traitor to his people, if he seek to subvert their 
ancient rights and liberties, as imbedded in the teachings of 
immemorial custom. In fact, it becomes increasingly easy 
to find examples of treason and its punishment, simply be- 
cause of the extension of the treason field, to include conduct 
not yet made strongly abhorrent by the inherited social instinct 
or habits of the race. 

Not only along lines of treason is there an increase of 
crime and criminals. The widening of the social bond to 
include kindred tribes and conquered peoples of unrelated 
stock, weakens somewhat the instinctive trust between in- 
dividuals within the group — that good fruit of many centuries 
of social pressure. Men and women of the tribe are much 
more frequently suspected of evil-witchcraft; and boundless 
superstition and fear make conviction easy and social pun- 
ishment cruel. " All African peoples have the utmost dread 
of sorcery and thousands of persons fall victims every year 
to the belief in its use," writes Wake; 2 and DuChaillu, that 
1 See p. 41. 2 P. 343. 



102 New Forms of Crime 

wide traveler in unexplored regions of the continent, writes : 
44 Great numbers of people are compelled to drink poison to 
prove their innocence of sorcery," this " taking awa} r more 
lives than any slave trade ever did." x The Negro races, to 
whom these quotations relate, number many millions of peo- 
ple, and it is probable that very frequently individual rather 
than social vengeance fell upon the supposed wizard, who 
may also have been a member of another and perhaps hos- 
tile group. Very few instances of punishment for incest are 
narrated. The strict military organization of Negro nations 
under despotic kings, is evidenced by the widespread social 
punishment of death for cowardice, of which we have in- 
stances among the Dahomans, Ashantes and Malagasy. 
Beside these primitive offences, there are other new forms of 
crime. Thus among the Congo people and the Kaffirs, the 
trial of poisoners is held before the king or chief and the 
penalty is death — often visited upon all the relatives of the 
guilty man — together with confiscation of their property. 2 
Savages, however, frequently confound poisoning with evil 
witchcraft. Premeditated murder by a chief is punished by 
the Kaffirs with outlawry. 3 The man in whose house a de- 
structive fire breaks out is punished in Dahomey with death, 
which is their usual penalty for all offences, even falling, 
when dancing before the king. 4 But after all, very few actions 
are punished as crimes. Murder, adultery and theft, with 
almost all other offences against the individual, continue to 
be regarded simply as torts, atoned for by composition, or 
revenged by the person or family harmed, if they wish to take 
the trouble, in obedience to ancient usage. The total amount 
of criminality must be comparatively small ; but when crime 
is punished the penalties are frightfully severe, as is generally 
the case among all savage peoples. 

1 A Journey to Ashan?o Land, p. 435. 2 Tuckey, pp. 87, 162-3. 

3 Barrow, i, 207. 4 Burton, i, 289. 



Savage Races 



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104 Negro Peoples 

TREASON. — Zulus t S P D. — Conveying information to the 
enemy, desertion from the tribe, contriving the death of the 
king or chief, or speaking evil against him, are punished 
among the Zulus by death and confiscation of goods. 1 

Congo People, S P D. — Lack of proper respect to the 
king or the king's wives is punished by death or slavery. 2 

Dahoma?is } S P D. — In Dahomey, treason and cowardice 
are punished with death. 3 The greatest respect to the king 
is compulsory. 4 After war, the king, as judge, holds an 
open court of justice. Any individual may comment on 
the conduct of any other man during the war, and " if the 
charge be substantiated, punishment follows. Great liberty 
of spirit is enjoyed, and distinctions of rank laid aside." 5 

The Dahomans " reverence" their king, " with a mixture 
of love and fear, little short of adoration." Even after hor- 
rible tyranny — when there was not an individual in the king- 
dom who had not lost some near and dear relative through 
the king's avarice or anger — their loyalty and attachment 
usually remained unshaken ; for " whatever the king does 
they are persuaded is right." Yet, in the reign of Ahadee — 
a terrible tyrant — who had been chosen king by the Prime 
Ministers, over the head of his elder brother, Zingah ; this 
brother, with other conspirators, plotted to seize the govern- 
ment; but they were discovered, seized, and all put to 
death. " The prince was sewed up in a hammock and 
drowned " in the sea — this being the punishment appointed 
by the law for offences of the royal family. 6 Later in the 
same reign, one of the Prime Ministers (the " Mayhou ") re- 
belled, but was defeated and killed in battle, while all pris- 

1 Gardiner, pp. 94-5. Shooter, p. 156. 

* Burton, A Mission to Gelele, i., 192, note. Pinkerton, xvi., 330. 

* Forbes, i., 26. 

*Dalzel, p. 133. Burton, A Mission to GeUU % i., 231, note. 
6 Forbes, ii., 86. * Dalzel, pp. 67-70. 



Savage Races 105 

oners taken were put to death. Here is wholesale punish- 
ment for treason. 

As/iantes, S P D. — The king is represented as an abso- 
lutely despotic monarch, but he is under " obligations to 
observe the national customs, which have been handed down 
to the people from remote antiquity ; and a practical disre- 
gard of this obligation, in the attempt to change some of the 
customs of their forefathers, cost Osai Quamina his throne." 1 
Individuals are subject to the most despotic authority and 
are frequently victims of the royal jealousy or displeasure. 
"To speak disrespectfully of the king is a treasonable of- 
fence" in Ashantee; so also, "To speak of the death of a 
former king, or to inquire concerning the successor to the 
reigning sovereign." Everybody must get out of the way 
when the king's wives go abroad. 2 

Malagasy, S P D. — Desertion from the army and coward- 
ice in battle were punished with death. 3 

" Rataffe was seized, and a public court of military and 
<:ivil judges declared him guilty of disloyalty. Within four 
hours a spear was thrust through his heart." 4 

Abyssinians, S P D. — The government is in the form of 
an absolute monarchy. Their legal system is based upon 
the ancient Code Justinian, but the king is "above all laws " 
and " often judges capital crimes himself." " It is death to 
strike, or lift the hand to strike, before the king." It is high 
treason to sit upon any seat of the king's. 5 

Incest — Hottentots, S. — " The Hottentots allow not mar- 
riages between first and second cousins." They punish 
adultery with death. 6 

South African Tribes between Cape Colony and Natal, S P. 
— " A man and woman whose origin can be traced to a 

1 Beecham, p. 90, et seq. Reade, p. 43. J Beecham, pp. 4, 95, 123. 

3 Drury, p. 151. 4 Ellis, Hist, of Madagascar, ii, 368, 410. 

5 Bruce, iv., 462-4, iv., 16. 6 Kolbe, i, 155 and 157. 



106 Uc haive or Black Magic 

common ancestor cannot marry ; nor can they, without 
breach of the law, have sexual intercourse one with another. 
Fines invariably follow breaches of the marriage law." r 

Abyssinians, S P 0., etc. — " Incest is looked upon by the 
Abyssinians in its proper light. I remember only two or 
three instances of its occurrence ; and in these the heinous- 
ness of the crime made such an impression on the feelings 
of the guilty persons that they confessed their sin publicly." 
Severe punishment with banishment into the mountains fol- 
lowed. The people " hooted" them out of the place, mani- 
festing great " disgust." 2 

Evil- Witchcraft — East Africans, S P D or slavery. — 
The crime of " uchawe or black magic" is punished by burn- 
ing to death, or sometimes by selling into slavery .3 

Gold Coast Negroes, S P. — " The Bulloms have a saying 
among themselves that a Bullom man cannot die, unless his 
death be occasioned by poison or witchcraft." Those be- 
lieved guilty of killing a member of the tribe by witchcraft 
are sold as slaves. " The accused person frequently ac- 
knowledges the charge, and submits to his sentence without 
repining." 4 

Hottentots, S P. — "They (the Korannas) are much ad- 
dicted to a mischievous sort of witchcraft, by means of 
which they often grievously torment each other." s All 
sudden sickness, pain and death they ascribe commonly to 
witchcraft. Old women among them are thought to l>e 
especially given over to this abominable art. 6 

South African Tribes between Cape Colony atnd Natal, 
S R D. — When any one falls ill, his friends go to the witch 

1 Macdonald, your. Anth. Inst, (1890), p. 270. 

2 Parkyns, ii, 220-2 1. 

3 Burton, Lake Regions of Central Africa, i, 1 13, 265. 

4 Winterbottom, i, 237-8, 260; ii, 10, note. 

5 Thompson, ii, 35. 6 Kolbe, i, 219-20. 



Savage Races 107 

doctor to learn the cause of the disease. After a long while 
sitting in silence, he says oracularly, " You are being killed." 
" How, and by whom? " they ask. He replies that he can- 
not tell. They must return the following day, and mean- 
while send a beast as his fee. The next day all the neigh- 
bors must attend the meeting. The witch doctor names to 
the chief the man who has bewitched "our brother;" all 
immediately separate themselves from the miscreant, and 
he is despatched that night. When the Rain Doctors fail to 
make rain fall after several attempts, " chiefs have been 
known to sacrifice every doctor belonging to the tribe in 
one huge holocaust." z 

Zulus, S P D. — Poisoning and practises with an evil intent 
termed witchcraft are punished by death and confiscation. 2 

Malagasy, S P D. — Among the Malagasy " chicanery, 
lying, cheating and defrauding are mere trifles, compared 
with the enormous offences of trampling or dancing upon 
a grave (sacrilege), eating pork in certain districts where 
it is prohibited, running after an owl or wild cat, or prepar- 
ing enchantments. In order that the land may be purged 
from the evils of witchcraft, it is imbued with the innocent 
blood of the unfortunately suspected victim — poisoned, 
speared, strangled, or dashed over the fatal precipice." Not 
to lie to foreigners on political matters is a crime. 3 

ANCIENT PERUVIANS, MEXICANS AND CENTRAL AMERICANS. 

Following those strong tendencies toward absolute mon- 
archy, as seen in Africa, to their natural conclusion, we find 
terrible despotisms, like the empires of the ancient Peru- 
vians and Aztecs, as they existed at the time of the Spanish 
conquest in the 17th century. The emperor is not only 

1 Macdonald, Jour. Anth. Inst. (1890), pp. 294-5. 

8 Gardiner, pp. 94-5. 

3 Ellis, History of Madagascar , i, 144, 389, 394. 



108 A7icient Despotisms of America 

commander-in-chief of all the war forces of the nation, not 
only the fountain of law and of all justice, but he has become 
a god, directly descended from the high god of the nation. 
An organized priesthood support him with the dread sanc- 
tions of a most cruel and blood-thirsty religion. Military 
governors and judges support him, for they lose both power 
and life at his nod. All things strengthen the binding yoke 
of the custom of obedience upon the people, who become 
the slaves of their God and king, while the fighting quality 
— the manly fibre — is gradually crushed out of them. An- 
cient usages of the nation are for the most part maintained 
and enforced, for they make toward social stability and 
strengthen the power of the emperor. His far-reaching 
authority is developed and safeguarded, also, by the creation 
of many new prohibitions, unknown in savage communities, 
and supported by ferocious penalties for disobedience ; such 
as death with all relatives to the fourth degree, death as sacri- 
fice, death by burning, stoning or burial alive. "Laws were 
few and exceedingly severe," wrote Vega (ii, chap. 3), of 
the Peruvians, and the same was written by Zurita (p. 303), of 
the Mexicans ; " under the ancient government the Indians 
had so few laws that they knew them all by heart." But 
what they had " related almost wholly to criminal matters," 1 
and offences were not only crimes but sins also. Social pun- 
ishments were very effective in repressing crime, and crim- 
inals were comparatively few. Guzman calls the Peruvians 
the "innocents of this country" (p. 96). They are "obe- 
dient, industrious, patient and friendly" among themselves. 
The Mexicans never seem to preserve the remembrance of 
an injury. "They are full of humility, obeying every one 
and knowing but submission and labor." 2 They are thor- 
oughly indolent, for they have become accustomed to act 

1 Prescott, Conquest 0/ Peru, i, 44. 3 Zurita, p. 186. 



Savage Races 109 

only from fear of punishment. The influence of the Aztec 
religion upon moral life seems to have been pernicious on 
the whole, but "the wish to have the good opinion of the 
tribe was productive of noble deeds." What we should call 
good actions were caused by social, not religious approval. 
Morality was apparently injured by religion, fostered by 
social pressure. Among the Peruvians there was " no 
money, little trade, and hardly anything that would be 
called fixed property," ■ and thus the numerous business of- 
fences which furnish so large a part of our modern crimi- 
nality could not have existed among them. 

A glance at the following table will show very clearly how 
the coming of an absolute despotism increased the number 
of actions punished as crimes and thus multiplied criminals. 
At the same time, the intense social pressure, crushing 
out all tendency to individual variation, even at birth, kept 
criminals comparatively few ; but prevented, likewise, all pos- 
sibility of growth to a higher plane of social life,, with greater 
intelligence and better morality — a growth which would in- 
evitably have brought with it the necessity for nicer social 
adjustments between man and man — an increase in the num- 
ber of acts deemed criminal and a growing mass of offenders 
against the state. 

The nations of Central America, when conquered by the 
Spaniards, had not attained the high state of social and politi- 
cal development witnessed in the two great barbaric empires 
of the new world. Actions known to have been punished 
as crimes were very few in number, and in Yucatan and 
Guatemala, adultery, murder and theft were still mere harms 
against the individual, punished or excused at the option of 
the injured. In studying the tables it must always be re- 
membered that SP and SR mean the action has become, or 
is becoming, a true criminal offence. 

1 Prescott, Peru, i, ch. 2. 



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1 1 2 Three Great Torts 

PROBABLE ORDER OF CHANGE FROM TORT TO CRIME OF THE 
THREE GREAT PRIMITIVE TORT OFFENCES. 

It is our belief that adultery was the first of the three 
great primitive tort offences to be converted into a true 
crime — that is punished by society as a wrong against itself, 
irrespective of the wishes of the person injured. It was then 
regarded as the most heinous form of theft, and serious theft, 
in general, was probably made truly criminal before murder, 
which was for many centuries undistinguished from involun- 
tary homicide, and which was always the harm most imper- 
atively demanding individual revenge — blood for blood — in 
those early days. So Grey writes : " The most sacred duty 
of the Australian is to avenge the death of his nearest 
relation ; until he has accomplished this he is mocked by the 
old women ; his wives, if he be married, would soon leave 
him. If unmarried, no girl speaks to him ; his own mother 
would constantly cry and lament as having given birth to so 
degenerate a son ; his father would treat him with contempt." 1 
Yet the murder of father, or brother, was undoubtedly an 
exception to this general rule ; for then the murderer was 
himself the nearest of kin, the natural avenger of the deed 
of blood, and the horror created by the unnatural act 
brought with it the dread social doom of outlawry. Like- 
wise, the murder of a beloved chieftain has sometimes been 
avenged by the entire savage community. 

Reasons for this general order — I, adultery; 2, theft; 3, 
murder; — in the change from tort to crime may be readily 
found. There is very little private property among savage 
hordes, what few goods they possess being held for the most 
part in common ; but the most highly valued and jealously 
guarded personal possession is the wife. 2 Later, when pas- 
toral and agricultural life had increased property and made it 

1 Grey, ii, 240. a See Australians. 



Savage Races 113 

a most important aid to social strength and effectiveness, all 
serious forms of theft were made criminal by the infliction of 
a true social punishment, and adultery, as the most intensely 
disliked form of theft, was probably changed first. The 
evidence, though scanty, from many different and widely 
scattered races, points in this direction. 

Adultery punished as crime. — The Australians punish ser- 
ious theft by death, or by expulsion from the social group, 
and they punish adultery as theft. 1 " If a young couple of 
Australians abscond, or if a man absconds with the wife of 
another, the whole tribe instantly goes in pursuit. In the 
former case death is the punishment of the female." 2 The 
word " expulsion " and the action by the whole tribe look 
like true social punishment in these cases, but all other au- 
thorities known to the author are agreed that adultery and 
theft among Australians are punished by individual revenge. 
For New Caledonians, see under Incest. 3 

Caribs. — By the Caribs the adulteress is done to death by 
the people in the public place. 4 

For Araucanians. See p. 59, "Crime Among Savages." 
Seems like SRD for adultery. Theft, SRD or I R D. 
Murder, I RD or IP C. 

Iroquois. — " Adultery was punished by whipping." A 
council was held upon the question, and if the charge was 
sustained, they ordered the woman to be publicly whipped 
by persons appointed for the purpose. 5 

Murder and homicide within the group grievously weaken 
the community, but constant danger of life and limb fosters 
skill and preparedness for war — prime requisites for survival 

1 Stuart's Australia, ii, 117, 276. 

2 Trans. Eth. Soc, N. S., iii, 249. 

3 Adultery usually I R Z>— one instance SPD. Theft, I R D. 

* Gumilla, i, 207. Quoted by Steinmetz, ii, chap. 9. Adultery usually I R D; 
one instance, SPD; murder, I R D. 

5 Morgan, p. 33 1 . Adultery , S P W. Theft, / i> (7. M urder, 1 R D or I P C. 



ii4 Homicide not a Crime 

among savage tribes. Man's business was to kill, and he 
must be well trained and always ready to fight the common 
enemy. Callous to suffering, cruel and impulsive by nature, 
trained to revenge as a religion, the power to fight well and 
kill was too highly prized and honored to permit punishment 
of homicide as crime by low savage communities. Not 
until passionate human nature had been somewhat curbed by 
social pressure in other directions, and until agricultural life 
had made killing within the group both more easy and 
more harmful, was even intentional homicide made crime. 1 

1 See Anglo-Saxon England. 



CHAPTER V 

THE EUROPEAN — ARYANS. 

The researches of philologists in recent years have given 
us an outline picture of our primitive Aryan ancestors nearly 
4000 years ago, when the forefathers of Greek and Roman, 
Teuton, Celt and Slav had not yet parted from the original 
mother stock, to begin their long and varied separate mi- 
grations. They were strangely low in the scale of civiliza- 
tion — these early progenitors of ours — when compared with 
the Chaldeans and Babylonians of their own era. Grouped 
in tribal communities around leading men or princes, the 
Aryans were a shepherd race, ignorant of agriculture, unac- 
quainted with the art of metal working, living in tents or rude 
wooden houses, knowing nothing of town life, polygamous, 
and almost naked ; with no words even to distinguish be- 
tween law, custom and religious observance, for " agas " 
meant an offence against both gods and men, and was equiv- 
alent in their language to the word " rna," fault or sin. 

We know, however, that the right of individual vengeance 
was already recognized among them, and that the rod was 
a favorite instrument of punishment, not only for scourging, 
but also for the infliction of the terrible death penalty. 1 One 
word sufficed the primitive Aryans for the ideas guilty, thief, 
debt or loan, and it is highly probable that they placed the 
unfortunate debtor, whose relatives or friends would not re- 
deem him, on a par with the detected thief. By both a man 

1 Ihering, p. 74-5. Suetonius {Nero, 49) specially mentions the " corpus virgis 
ad necem caedi " as " mos majorum," the custom of the ancients. 

(i'5) 



1 1 6 Primitive Punishments 

had been deprived of his property, and against both he had 
the same right of unlimited flogging. The amount of the 
debt or theft bore no relation to the penalty inflicted. 1 There 
were at least nine different methods of appeal to divine 
judgment — of which ordeals by fire, water and poison were 
the most severe — but we do not know to what offences these 
tests and punishments were applied. Have we then any 
evidence at all that crime was punished by the early Aryans? 
Was everything left to individual revenge, or were there 
some few actions so instinctively abhorrent to the community 
that they called for social condemnation and collective ven- 
geance? Two facts indicate this latter conclusion. Outlawry 
was known among the Aryans, and this custom we have 
found associated with the beginnings of true public punish- 
ment, both among animals and low savage men. 2 Also, 
Ihering, the great German student of comparative jurispru- 
dence, does not hesitate to state that this rude people " pro- 
hibited marriage between near relatives." 3 Thus, incest was 
probably a crime among our ancestors, 4000 years ago, just 
as we know it to be criminal among low savage tribes to-day. 
The necessities of the long migratory period changed the 
sluggish, unprogressive, primitive Aryan into the energetic, 
war-like, progressive European. Hunger was the spur driv- 
ing onward to new lands, into conflict with new foes. It 
was always the strongest and bravest who went forward from 
each temporary home. Natural selection and social selec- 
tion were both joined in developing the masterful stock 
whence sprang the victorious, liberty-loving nations of 
western Europe. When history opens, the race is already 

1 See the Roman Twelve Tables, where the " in partes secare " took the place of 
scourging to death, " si plus minusve secuerint sine fraude esto." 

1 The rod and expulsion from the community of the Aryans are the two forms 
of punishment mentioned by Zimmer. See Ihering, p. 74-5. 

• Ihering, p. 46-7. 



The European — Aryans 1 1 7 

widely scattered and national lines are beginning to form. 
From henceforth our study is of European progress in 
civilization. Do the records we possess of the early Aryan 
national groupings on the continent of Europe warrant a 
belief in the primal sovereignty of the people, and the direct 
social punishment of crime, in obedience, not to the com- 
mand of any king or ruler, but to the dictates of time- 
honored ancestral custom? What conduct was prohibited 
by the community? What penalties were inflicted? 

Crime is a Social Product. — " In the primitive law of almost 
all the races which have peopled western Europe," writes 
Sir Henry Sumner Maine, " there are vestiges of the archaic 
notion that the punishment of crime belongs to the general 
assembly of the freemen." 1 

The Aryan state, in its rudimentary form, writes Hearn, 
"dealt exclusively with its own affairs." It punished the 
person who betrayed its secrets to the enemy, or who, 
whether in the field or by less open aid, took part against 
his country. But it did not interfere in the private quarrels 
of its citizens. " Every man took care of his own property 
and his own household, and every hand guarded its own 
head." Injury brought individual revenge or reprisal, or 
might be followed by composition. " The state cared for 
none of these things." 2 Yet "when any new worship was 
introduced, or when any sorcerer or magician practiced his 
mysterious arts, the whole force of the community was 
directed to repress the common enemy, and the state did 
not hesitate to repel a danger that seemed to threaten as 
well itself as all its subjects." 3 "Our whole system of per- 
sonal and political liberty rests upon the two principles — 
that individual freedom of action is the rule and that the 
interference of the state is the exception." 4 

1 p. 383. ■ Hearn, p. 431. s Ibid., p. 432. * Ibid., p. 394. 



1 1 8 Roma?i Genius for Law Making 

Romans. — The Roman people certainly possessed a genius 
for law making. Their early kings, and especially Romulus, 
stand as the representatives of antiquity. The instructions 
and laws accredited to them — and very possibly promulgated 
by them — usually embody old social customs, handed down 
through many centuries. Their legal system begins with a 
code — the famous code of the XTI. Tables — regarded with an 
almost superstitious reverence by the Roman people, and 
committed to memory by every Roman schoolboy. Com* 
piled as early as 451 B. C, graven on brazen tablets in the 
heart of the city, many of these laws were not superseded 
till the enactment of the Code Justinian, 529-534 A. D., and 
their importance to the Roman nation can hardly be over- 
estimated. 1 The fragments of the XII. Tables which have 
come down to us bear within themselves the evidence that 
these laws were really the condensed expression of very 
ancient legal customs of the race. 2 They " are little more 
than brief legal maxims or mementoes of settled legal prin- 
ciples, which must have owed all their life, and even their 
meaning, to a quantity of special notions widely diffused 
abroad, as well as to an infinity of detailed usages, of which 
no account whatever is contained in the words of the law 
itself." 3 This earliest of all codes bears ample witness to 
the sovereignty of the Roman people and to the customary 
punishment of criminals by the popular assembly. Thus, 
under Table IX. (de jure publico) we read: 

Ft. 2. " De capite civis, nisi per maximum comitium, ne 
ferunto." 

The grand assembly of the people — the assembly by cen- 

1 Gcero, De Leg., ii, c. 23; De Or at., i, c. 43, 44; De Re Pub., ii, c. 36, 37: ir, 

c.4. 

1 Cumin, Introduct., p. 5; Mears, Introduct., p. lvii; Goodwin, p. 8. 
1 Amos, p. 13. 



The European — Aryans 119 

turies — alone has the right to judge capital offences of a 
citizen. 1 

Table IX. Fr. 5. " De eo qui hostem concitaverit quive 
civem hosti tradiderit." And Marcianus I, xiv, Inst. D 
(48.4), "Lex xii tabularum iubet eum qui hostem concita- 
verit, quive civem hosti tradiderit, capite puniri." 2 

A law of the twelve tables commands that he who incites 
an enemy against his country, or betrays a citizen into the 
hands of the enemy, shall be punished with death. This 
was treason, or " Perduellio, the term for all acts whereby 
a man within the state showed himself an enemy (Perdu- 
ellis) of the established constitution. In the oldest trial for 
a capital offence on record, the Perduellion suit of Horatius, 
the execution contemplated was by flogging." 3 

Table VIII. (de delictis). Fr. 26. "Ne quis in urbe coetus 
riocturnos agitet." 

Seditious meetings by night in the city are forbidden. 
This also was treason, and the penalty was death. 4 

" Incestum pontifices supremo supplicio sanciunto." 

Against incest, let the chief priests give sentence of the 
extremest penalty of the law. 5 

Table IX. Fr.j. "Ne iudex arbiterve ob rem iudican- 
dam pecuniam accipiat." 

No judge or arbiter shall receive money for his judgment 
(under penalty of death). 6 

Fr. 4. "De quaestoribus parricidii et de provocatione." 

Of inquisitors of murder and right of appeal. Quaestores 

1 See Cicero, De Legibus, iii, 19, 44. De Re Publica, ii, 36. " Majestas," says 
Cicero, " residet proprio in populo Romano." 
J Schoell, pp. 152-3. 

3 Ihering, p. 53. 

4 Porcius Latro, Dedamatio Contra Catilinam, cap. 19. 

5 Cicero, De Leg., ii, 8, 9. This is mentioned among old laws, but not as a frag- 
ment of the XII Tables. 

• Aulus Gellius, Nod. Attic, xx, 1, 7, and Cicero, In Verrtm, i, 13. 



i 20 Fragments of the Twelve Tables 

parricidii were appointed by the Roman assembly to try 
murder cases, 1 but there was always the right of appeal to 
the people from the death sentence. 2 

Table VIII (de delictis). Fr. 24.. " De homicidio" (con- 
cerning homicide). 3 " Indicat lex Numa Pompilii regis, 
si quis hominem liberum dolo sciens morti dint, parricida 
esto." 

If any one kill a freeman wilfully and maliciously, let him 
be deemed a parricide. 4 

Table VIII. (de delictis). Fr. 25. " Qui malum carmen 
incantassit — malum venenum." 

Incantations and wicked drugs. 5 M. Ortolan : Explication 
Historique des Institutes, thus interprets : Death for him who 
uses wicked enchantments or gives poison. 

Fr. 2j. " De poena falsi testimonii." 

The punishment of false testimony. And Aulus GelHus, 
Noct. Attic, xx, i, 53 : False witnesses were hurled from the 
Tarpeian rock. 

Through all the years of the Republic, and long after the 
Empire was established, the deep-seated reverence and affec- 
tion of the Roman people for these ancient customary laws 
is plainly manifest. A storm of popular indignation greeted 
the unsuccessful attempt of Caius Gracchus, in 123 B. C, to 
change these customs by withdrawing the cognizance of 
murder and poisoning from the popular assemblies, to entrust 
it to permanent judicial commissions. Not till the next 
century was this very necessary reform actually carried out. 

1 Digesta, i, 2 (2, 23). De orig. juris. 

1 Cicero, De Re Publico., ii, 31. 

3 See Pliny, Nat. Hist., xviii, 3 (3), for the death penalty inflicted on the man 
slayer; and Festus — "Parricidii quaestores." 

* The word " Parricida " is most probably a contraction of parenti-cida — the 
murder of a relative. In earlier ages this was doubtless the only form of homi- 
cide which the Romans punished with death. Festus records the extension of 
this penalty to all murderers. 

5 Pliny, Natur. Hist., xxviii, 2 (4), and Digesta, 1, 16. De verbor. signif. 



The European — Arya?is 1 2 1 

The Romans did not possess a permanent criminal tribunal 
of any sort until the first Quaestio Perpetua was appointed 
in 149 B. C, and this dealt with only a few political offences. 1 
Sulla's legislation, early in the first century B. C, "covered 
the whole field of criminal law." 2 Thus we see how long 
and jealously the Roman people guarded their sovereign 
power and right of direct social punishment for crimes as 
against any other authority whatever, even one delegated 
to their own appointed judges. Indeed, it was this failure 
of the Roman people to develop a true criminal law, which 
finally degraded Roman criminal procedure into a weapon 
of partisan politics and made it completely void of principle. 
Criminal trials became mere party broils, and to this, more 
perhaps than to any other cause, may be traced the decline 
and fall of the Roman Republic. 3 

Spartans. — Very little is known about Spartan criminal 
procedure, but the popular assembly tried political offenders, 
being assisted in its judgments by the Ephors. A king, on 
trial before the High Court, composed of twenty-eight Sen- 
ators, five Ephors and the other king, could, if condemned, 
appeal to the assembly of all Spartans. 4 

Athenians. — We are much better informed concerning the 
organization of justice in Athens than in Sparta. From re- 
mote antiquity the council of the Areopagus ("Apeioc -a-yog) met 
on Mars Hill, outside the city wall, to try traitors, homicides 
•and the sacrilegious, where the city could not be defiled by 
the presence of such men. The judges were taken from the 
nobility, but they judged in accordance with ancient customs 
of the race. As yet there were no written laws. Under 
Draco the tribunal of the fifty-one Ephors became the great 
criminal court, and Solon made further changes. But always 
— and this is an important fact — the accused criminal had 

1 Extortion by Colonial Governors, etc. See Lex Calpurnia de Repetundis. 

2 Cherry, p. 74. s See Maine and Hearn. * Letourneau, pp. 330-2. 



122 



Hellenic and Slavonic Peoples 



the right of appeal to a superior tribunal, composed of from 
500 to 1000 or even 1500 jurors, chosen every year, by lot, 
from the mass of the population. This was the celebrated 
Heliaea ('Rhaia), essentially a popular tribunal, and there was 
practically no appeal from its sentence. The Heliasts bound 
themselves by terrible oaths to judge according to the cus- 
toms and decrees of the people, never to pronounce in favor 
of oligarchy or tyranny, to be strictly impartial and to receive 
no presents. In time the high courts of the Areopagus and 
the Archons were practically replaced by the Heliaea. 1 The 
Athenians punished desertion to the enemy and other forms 
of treason with death. This was also the penalty for sacri- 
lege and the profanation of mysteries. The bodies of such 
criminals could not be buried in the territory of the republic 
and their goods were confiscated. 2 Even the children of a 
traitor might legally be put to death. An Athenian guilty 
of gross crimes against nature was publicly disgraced and 
lost his rights of citizenship. Under Solon pecuniary fines 
were very largely introduced. 

Slavs. — The primitive Slavic folkmotes included the com- 
mon people, and were convened, not periodically, but as 
often as some question of state arose requiring public dis- 
cussion. In early times the decisions of the people were 
unanimous. This meant that the minority, if it could not 
convert the majority to its way of thinking, was forced .to 
acquiesce in the common decision. Any one who refused 
assent during the meeting was beaten with rods. Opposition 
to the vote of the majority, after the assembly, was punished 
by the loss of the dissentient's property, which was often 
destroyed by fire, unless he was ready to redeem it by a sum 
of money, varying according to his rank. 3 The statute of 
Vinodol shows that the early laws of the southern Slavs were 

1 Letourneau, pp. 334-345, and Maine, p. 360. 

2 Du Boys, pp. 175-7. 3 Kovalevsky, p. 123. 



The European — Aryans 123 

codified in 1288 from old customs preserved in memory. 
Even to-day the regular tribunal of the Russian (Volost) 
villages, giving judicial decisions in civil suits and misde- 
meanors among the peasantry, is not bound to follow the 
prescriptions of law, but those of custom. 1 "Cases of high 
treason were referred to the popular assembly" at Novgorod, 
"just as they were in Poland and Bohemia." Whenever the 
Posadink — the supreme judge elected by the people — had to 
decide a case to which no existing law applied, he must con- 
sult the assembly of the people." 2 About the end of the 9th 
century, the Drevlians are related by the chronicle, to have 
on one occasion "thought in common with their prince Mai," 
and decided " to slaughter the son of Rurik, Egor." The 
prince evidently consulted the folkmote, and with its help 
arrived at the decision. 

Germans. — Among the Teutons both legislative and judi- 
cial power were entirely in the hands of the people, and upon 
all matters of importance the king or chiefs had to seek the 
verdict of the folkmote. Thus we read in Tacitus, Gerniania, 
cap. 12 : "It rests with the council of the freemen to accuse 
and hold over a man the peril of a capital charge. They 
distinguish between crimes and minor offences (delicto). 
Traitors and deserters they hang on trees. Cowards in bat- 
tle and those who will not serve in war, together with men 
stained by abominable vices, they plunge into the mire of 
the morass, smothered under hurdles. For slighter offences 
the punishments are in proportion. Those convicted are 
fined in horses and flocks. Part of the fine goes to the king 
or to the state, part is paid over to him who is avenged, or 
to his near relatives." 3 With the Germans, again writes 
Tacitus, " good customs avail more than do strong laws else- 
where." Social abhorrence of the coward and the traitor are 

1 Kovalevsky, p. 105. 2 Charter of Pscov., 1467; Kov., p. 144. 

3 These fines were evidently compositions and the offences torts. 



124 Teutons and Celts 

plainly manifest in the epic Beowulf. The social morality 
of that day stamped these actions crimes, while their oppo- 
sites, courage and fidelity, were held up for honor and imita- 
tion as the peculiar virtues of the Germanic peoples. 

Teutons and Celts. — Kings and leaders were elected by the 
people among both Teutons and Celts. When, without such 
election, some one ventured to assume " ever so limited a 
command, with a view to possess it for life," it enraged the 
people " to such extent that they avenged the outrage by 
his death." Thus in the case of Orgetorix among the 
Helvetii : x "Orgetorix having plotted to seize the royal 
power, they (the Helvetii) compel him, according to their 
customs, to plead his cause from chains. If condemned, the 
punishment must follow, that he be burnt with fire." 2 A 
literal translation best expresses the inevitable character of 
the doom to be inflicted in obedience to ancestral usage. 

The Germans, writes Caesar, hold robbery to be no dis- 
grace, if the act is committed beyond the territory of one's 
own state. 3 This was an act of war, and praiseworthy. But 
when the deed is committed within the tribe, " those taken 
in theft, robbery or other offence are offered as human sacri- 
fices, pleasing to the immortal gods. However, as a supply 
of this kind is wanting, they also offer innocent victims." 4 
This shows punishment for torts, crimes or sins, in the name 
of religion, and also fewness of the offenders. 5 The Druids 
were apparently the repositors of the ancient penal customs 
of the Teutons. They possessed great power, especially in 
punishing sins, and the ban of excommunication was their 
heaviest penalty. 6 

The evidence seems to warrant the conclusion that among 

1 Caesar, De Bello Gallico., Book I, sec. iv. 

2 Ibid., Book VII, sec. iv, and Tacitus, Annates, ii, 88, for the case of Arminius. 

3 Caesar, Book VI, sec. xxiii. * Ibid., Book VI, sec. xvi. 
* Ibid., Book VI, sec. xvii. 6 Ibid., Book VI, sec. xiii. 



The European — Aryans 125 

European Aryans at the dawn of history, the people were 
everywhere sovereign. These free and sovereign peoples 
habitually punished a few most harmful acts, not as harms to 
an individual, but as crimes against society, and jealously 
guarded their ancient customs of social trial and social ven- 
geance. Society alone declared what acts were criminal. 
Society alone punished men for their crimes. Society, by 
manifesting strong disapprobation, and by inflicting social 
vengeance, converted certain acts into crimes, and the per- 
petrators of such acts into criminals. Crime is a social 
product. 



CHAPTER VI 

THE ANGLO-SAXONS IN ENGLAND. 449 TO 1066 

Hitherto our study has been of the origin, nature and 
earliest forms of crime, and we have found true social pun- 
ishment for wrongs against the commonweal among primi- 
tive Aryans and all other races of men. Now we shall study 
the growth of crime and its usefulness, in relation to social 
progress ; following the history of the Anglo-Saxon people, 
among whom crime has had its largest development. 

When the Angles, Saxons and Jutes abandoned x their old 
homes in Germany to conquer and possess the lands of 
fertile Britain, they doubtless brought with them their ancient 
penal customs, laws of tort and habits of punishing crimi- 
nals, described by Caesar and Tacitus. Living far from 
Roman influence, by the cold Northern Sea, they probably 
had no knowledge whatsoever of any legal customs not 
Germanic, and clung as tenaciously to their ancient usages 
and liberties as did their descendants, the English, in later 
years. The brief Saxon law of the continent, put in writing 
about 800 A. D., but reflecting customs of the centuries 
before, 2 is apparently little modified by the law of Im- 
perial Rome, and the Danes and Scandinavians who invaded 
England in the 8th and 9th centuries had, if possible, a yet 
more archaic type of German legal custom. Wild men of 

1 Kentish traditions of the conquest state that part of the lands occupied by the 
Angles and Jutes before their emigration were long after left untilled and un- 
grazed. The invaders brought with them their wives, their children, and then- 
cattle, just as in later times the Northmen carried both wives and cattle to Iceland, 
Greenland and Vineland. Traill, i, 132. 

3 Brunner, i, 347~349- 

(126^ 



The Anglo-Saxons in England 127 

the woods, fierce rovers of the waters, sailing up the rivers 
and estuaries of eastern and southern Britain in their 
dragon ships, killing, pillaging and burning as they went; 
it must have seemed to the civilized inhabitants of the 
coasts as if the flood-gates of barbarism had been let loose 
upon them. Gradually, the invading bands pushed their 
enemies further and further into the west, where they be- 
came known as Welshmen (*. e., foreigners), but the 
struggle was a long and hard one, lasting for more than one 
hundred and fifty years, and it resulted in the thorough 
Teutonizing of Britain, the supplanting of Christianity by 
heathendom and the disappearance of Roman law courts 
before the ferocious blood feud and the wergeld of the Ger- 
man forests. 

We have almost no information regarding the Pagan 
period of Anglo-Saxon England ; but existing evidence of 
the 7th and 8th centuries fully warrants our belief that the 
Anglo-Saxon penal customs and courts of justice were iden- 
tical with those of Germany. 1 The first of the Kentish 
Codes — Aethelberght's, about 600 A. D. — consists of ninety 
short paragraphs, mostly relating to money compositions 
which the courts allow for very carefully defined personal 
injuries. Contemporary German codes contain practically 
the same offences and fines, and the laws of nations nearest 
of kin to the Angles and Saxons in Germany coincide with 
these laws of Aethelberght's the most closely. 2 

In the laws of Hlothar and Eadric (Kent 675) 8th para- 
graph, we read : " If any man make plaint against another 
and meet him at (cite him to) the methel or the thing, let 
the defendant always give security to the other and do him 
such right as the Kentish judges prescribe to them." 3 Both 

1 The Dooms of Anglo-Saxon kings have been pronounced by one scholar after 
another purest specimens of old Teutonic law. Traill, i, 172. 

1 Thorpe, p. iii, preface. 3 Ibid., p. 13. 



128 Tribunals of the German Forests 

the names and procedure of the old Germanic law courts 
are thus found in existence in Kent. 1 The Dooms of 
Alfred clearly distinguish between two courts: the folk 
gemot, or district court, held every four weeks, and the 
Gemot of the Ealdorman, formerly the Assembly of the 
State, which met twice a year. These are the time-honored 
tribunals of the German forests. 2 From the simplicity of life, 
the wide field allotted by ancient custom to individual and 
kindred vengeance, as also from the weakness of the ancient 
tribal state, the courts could punish very few acts as crimes, 
but treason, desertion from the army, cowardice and incest 
must have brought destruction upon offenders in heathen 
England as well as heathen Germany. 

With time and social progress, however, private vengeance 
and the blood feud lost their rude usefulness, and became 
more and more social evils. Slowly and very cautiously the 
right of vengeance was curbed and limited by social pres- 
sure. Even in Homer's age, among the Greeks, some wise 
and honored chief occasionally acted as arbitrator in serious 
disputes, preventing revenge by his award of a composition 
for the harm done, voluntarily paid and voluntarily accepted. 3 
At first, vengeance alone was honorable and composition 
disgraceful. Gradually composition became more permis- 
sible — then honorable. Social influence favored this modi- 
fication of ancient custom, using the desire for gain as a sub- 
stitute for the pleasures of revenge, but the individual's right 
of choice between vengeance and composition long con- 
tinued. 4 Society at length compelled the injured man to 
seek arbitration and composition first, before vengeance on 

1 Adams, p. 9. 2 Alfred, ii, 22, 34, 38; Thorpe, pp. 34 and 37. 

3 See The Famous Shield of Haphsestus. 

4 " The Iliad (ix. 632-636) distinctly mentions both the duty of vengeance and 
the customary acceptance of the compensation. But the avenger of blood was 
under no compulsion to forego his feud. The State was simply a mediator." 
Hearn, p. 442. 



The Anglo-Saxons in England 129 

the offender, thus giving time for passions to cool. Yet 
later, the adjudged compensation, if offered, must be ac- 
cepted in most cases and finally in all. Such was the evo- 
lution of the tort. 1 4< It was evidently the policy of the state 
to check these bloody quarrels, which continually deprived 
it of the services of its most active and warlike citizens." 
The method adopted was u making the best terms it could 
for the wrong-doer." " Accordingly it proceeded to de- 
termining the amount of composition for every injury. This 
learning of the wergeld, or the Eric — that is, the man-price 
— formed the largest portion of the taw of Teutons and 
Kelts." 

But the laws found in early Teutonic Codes of the fifth 
and sixth centuries are not laws of crime, neither did 
they include all the penal customs followed by early Teu- 
tonic society. The oldest rules of vengeance were not 
recorded in written laws. What we find are records of 
deviations from the most archaic customs — social checks 
and modifications of the cherished right of individual ven- 
geance for private injury — laboriously established as cus- 
tomary laws of tort by social pressure. For the most part 
they are tariffs for bodily and other injuries, regulated, not 
by the gravity of the offence, but by the provocation to ven- 
geance. Here are no provisions for the social punishment 
of criminals, that is, of offenders against the state ; and no 
rules defining the penal authority of parents. We know 
well, however, that both the assembly of the freemen and 
the father in his family possessed the right to judge and 
used the right to punish. Probably unwritten social cus- 
toms prescribed punishment for a few acts as sins against 
the gods, 2 but, in general, murder, theft and most other 

1 Hearn, p. 442-3 
'Caesar, vi, sec. 16. 



130 The Teutonic Kingship 

harmful acts were not then crimes. We shall see how they 
became crimes in the progress of the centuries. 

Long continued warfare in a foreign land has always 
raised up a king among Teutonic peoples. At first he was 
purely elective, and possessed little power, except when 
leader of the host. But the Anglo-Saxon kingdoms were 
for centuries like camps in a hostile territory. All adopted 
a military organization, and social necessity induced a grad- 
ual consolidation of power in the king's hands ; for thus 
military strength and efficiency were greatly increased, and 
the people more firmly bound together for domestic peace. 1 
This was the social requisite for survival. The strongest, 
most warlike, most united states rose to dominance; the 
weak disappeared from history. By the end of the sixth 
century, the victorious Angles and Saxons had established 
many petty kingdoms in Britain. Some, the westernmost, 
were growing yearly stronger and larger at the expense of 
their old Celtic enemies, while others were now entirely sur- 
rounded by Germanic territory, and could expand only by 
victories over those of their own race. Such wars at once 
began, and soon became the chief source of Anglo-Saxon 
weakness, the main obstacle to social progress. 

Christian England. — Two strong forces made towards the 
union of these warring states into a single nation : one, 
enduring, the Christian Church, which formed an ever- 
tightening bond of union between Anglo-Saxon peoples; 
the other, the royal power, when held by some strong, 
victorious king, and usually passing with his death. The 
history of England, up to the Norman Conquest, may be re- 
garded as a long struggle for national unity — a struggle 
never really successful, except temporarily, under pressure 
of foreign invasion. The Church was entirely victorious in 
its long warfare against heathendom, and its power was very 

1 Kemble, ii, 23. 



The Anglo-Saxons in England 1 3 1 

great. 1 During the Danish invasions all the English were 
united for a time under Edward the Elder (in 924) and 
again under Edgar (958-975). Feudalism was gaining 
ground. The Anglo-Saxons were advancing, though slowly 
and painfully, in the right direction ; and social progress 
(new life) was, as v/e shall see, speedily safe-guarded by the 
creation and enforcement of penalties for acts newly deemed 
criminal. The Codes show us the increase of penalties for 
acts against the Church, the person and power of the king 
and his officers. These penalties were socially made and 
enforced, thus making the acts true crimes. Under weak- 
ling kings we see a reversion to individual vengeance ; under 
strong kings an increase of penalties and crimes. New 
crimes took the direction of offences against the new life of 
society and its upward progress. 

Among Anglo-Saxons, the king, like every other man, 
was subject to the ancient legal customs of his race ; the 
people were themselves the judges and found judgment in 
their own courts, with which the king had no right to inter- 
fere. Even an appeal to the king was a legal offence, pun- 
ished by fine, unless justice had actually been denied in the 
ordinary courts. This law is re-enacted in the dooms of 
king after king until after the Norman Conquest. 2 Although 
the king was at the summit of the social order, yet he had 
his price (wer-gild), and his death could be compensated 
for like the homicide of any other man. Not until Alfred's 
time did treason against the king's person become punish- 
able with death and botless. But, as head of the state, the 
king was defender of the public peace, and as such possessed 
certain rights with judicial and penal authority, in which he 
was confirmed and supported by the people. Thus he was 

1 Stephen, ii, 397. 

* Atheist, i, § 3, Thorpe, pp. 85-86; Edgar ii, § 2, Thorpe, p.i 12; Cnut, ii, § 17, 
Thorpe, p. 165; Wm. the Conq., i, § 43; Thorpe, p. 209. 



132 The King* s Peace 

empowered to inflict fines upon officials and even private 
individuals, for neglect of duty menacing the public welfare. 
He might even sentence to banishment and outlawry for 
continued breaches of the peace, if the wealth and power of 
the offenders seemed to put them beyond the reach of the 
people's courts. 1 Early Germanic society was organized 
upon a basis of frith, i. e., peace ; and every violation of the 
peace was regarded as a wrong or injury to some one. 2 
Every man's house was his castle and sacred, resting under 
his protection, his peace. 3 Whoso broke this peace in- 
curred his vengeance, and later, when vengeance was very 
generally replaced by composition, the offence became a 
tort, for which damages were awarded in civil action before 
the gemot, by verdict of the people. 4 The king's peace was 
very naturally the most sacred and far-reaching peace. We 
know, from a law of Aethelstan, the exact extent of the 
mystic circle round the king's habitation. 5 It was " 3 miles 
and 3 furlongs and 3 acres breadth and 9 feet and 9 palms 
and 9 barleycorns." At the three chief festival seasons of 
the year, and during the week of his coronation, the king's 
peace was extended to the whole people, and any breach of 
this peace was punished as a direct injury to him, in the 
people's courts. The king could also " give" his peace to 
individuals by his word and will, by his " hand," writ, or 
seal. Violations of the protection thus given brought -a 
greatly increased punishment upon the offender — some- 
times by large fines, sometimes by placing life and limbs at 
the king's mercy, or exposing the culprit to the dread 
social doom of outlawry. The people stood behind the 
king in all these dooms, and with him enforced the penalty. 

1 Aelthelst, iii, § 3, Thorpe, p. 92; Aelthelst, iv, § 1, Thorpe, p. 94. 
'Adams, p. 263. 3 Maitland and Pollock, ii, 452. 

* Edw. and Guth., § 6, Thorpe, p. 73; Alfred, ii, § 42, Thorpe, p. 40. 
5 Aethelstan, iv, § 5, Thorpe, p. 95. 



The Anglo-Saxons in England 133 

This is very important ; for it was largely through the ex- 
tension of the king's authority to punish for breaches of his 
peace — all unauthorized revenge being so considered — that 
individual vengeance, or fines ("bots") for damages, became 
replaced by true social punishments for crime. 1 Non-pay- 
ment of fines decreed by the courts, whether " bots," rec- 
ompense to the individual harmed, or " wite" fines, paid to 
the court or to the king, 2 was punishable by outlawry, under 
all systems of Germanic law ; and this was one of the earliest 
legal penalties for disobedience imposed by society — 
11 the connecting link between private penal law and true 
criminal law." 3 The man who would not accept the peo- 
ple's verdict was put out of the law's protection. Any one 
could kill him with impunity. He was declared untrue to the 
folk (" tiht-bysig " and " folkungetryue") and to the old folk 
peace. 4 The outlaw was an enemy to the whole folk (" utlah 
wio eall folc") ; s and because he was an enemy to the peo- 
ple and the king, any one who harbored or aided him be- 
came a criminal and forfeited his possessions. 6 Gradually 
the old folk peace came to be considered as the king's 
peace, for the king could restore the peace to an outlaw 
("frioian") or inlaw him again .(" inlagis"). 7 In outlawry 
we see the whole state putting itself in war against the 
criminal who will not abide by the laws, and this is the es- 
sential fact in all punishment for crime — social vengeance 
against the man who wrongs society as a whole. Among 
Anglo-Saxons the outlaw was excommunicated by the 
Church, and his position was utterly dismal. 

1 This change was not completed till long after the Norman conquest. 

1 The " wite" was originally regarded as a payment for the trouble of conducting 
the suit. 

3 Cherry, p. 85-6. Also Maine, pp. 170-174. 

*Ethelred, i, 4, Thorpe, p. 12c. The peace-breaker was "inimicus regis et 
omnium amicorum eius." See Atheist., ii, 20, § 7. 

5 Aethelr., i, 1, § 9. f Ine, § 30; Cnut, ii, §§ 13, 78. 

T Atheist., ii, 20, § 3; Cnut, i, 2, § 4. 



134 The Christian Church 

The Church. — While persistent warlike needs were 
strengthening the power of the king, the Church of Christ 
was steadily converting the heathen Anglo-Saxons, and from 
the very first allied her fast-growing influence with the royal 
power, in the upbuilding of a centralized government. This 
was most natural, for the conversion of the English king- 
doms began in most instances with the conversion of the 
king and his court. Under Archbishop Theodore of Tarsus 
in 673, all the Christian Bishoprics in England were united 
into a single Anglo-Saxon Church. 1 This unity of religion 
and of church organization was a strong influence toward 
political union also, but the inveterate Teutonic tendency 
to split up into little petty states long prevailed. Probably 
the Anglo-Saxons were well used to bodily penalties for sin, 
under the stern heathen worship of the Druids. At any 
rate, Christian bishops found little difficulty in inducing 
kings and wise men, with the consent of their people, 2 to 
proclaim heavy fines for offences against the Church, and 
later on to punish sins as crimes against the state. Such 
laws greatly strengthened the power and authority of the 
Church, 3 and at first this was greatly to the benefit of society. 
Through the aid of the king the Church multiplied religious 
laws and penalties. In return it aided him in many ways: 4 
his growing power being secured by laws punishing, as 

1 Traill, i, 160. 

2 The preamble to the Kentish Laws of Whitraed (Thorpe, p, 16), close of the 
7th century, declares that an assembly (Gemot) of great men, including the king 
and priesthood, " decreed, with the suffrages of all, these dooms, and added them 
to the lawful customs of the Kentish men." 

8 "Probably the clergy were never more powerful in any time or country than they 
were in England before the Norman Conquest. Civil and ecclesiastical legislation 
went hand in hand. Nearly every set of secular laws enacted by any of the 
early English kings was coupled with an ecclesiastical code, or contained eccle- 
siastical provisions : the bishop and the earl sat side by side in every county 
court. Heresy and schism were alike unknown." Stephen, ii, 397. 

4 Kemble, ii, 26-7. 



The Anglo-Saxons in England 135 

crimes against the state, treason and other offences against 
his person and authority; giving him power of life and 
death in many instances, and enabling him to stiffen penalties 
and change torts into true crimes. All the Anglo-Saxon 
codes show this strong influence of the Christian Church, an 
influence rapidly increasing and intrenching itself behind 
these laws, punishing sins and failure to pay the Church her 
dues. 

About the year 600, very soon after the establishment of 
Christianity in Kent, King Aethelberght caused the ancient 
dooms of his people to be put in writing. 1 This is the 
earliest Anglo-Saxon code which has come down to us. At 
the head of the 90 dooms is a single paragraph relative to 
the Christian Church; decreeing heavy fines for theft of 
property belonging to the Church or her servants, and for 
violation of Church right of sanctuary. The offences are 
regarded as torts, with heavy penalties, because of the 
majesty of God. Of the other dooms, 58 relate to attacks 
on the person ; 1 1 to attacks on property; 13 to fornication 
or aggressions on women ; 2 to adultery ; and 5 are declar- 
atory of rights. All are laws of tort and probably the 
equivalent of the penal customs brought by the Anglo- 
Saxons from Germany, relating to offences of an individual 
to a fellow man. Crimes against the state are not once 
mentioned in these dooms ; neither are sins mentioned ; but 
some unwritten criminal laws did exist, for a few actions 
had long been punished by society as crimes. The 90 
"dooms" contain almost no corporal punishment, no im- 
prisonment, and no death penalty that might not be com- 
pounded for. They present a great tariff of fines, which had 
come to be deemed punishment, rather than the purchase- 
price of forgiveness, an indulgence to the offender, the 
meaning they originally bore. As moral ideas developed 

1 Traill, i, 165. 



136 Non-finable Offences Multiplied 

under Christian influence, fines were regarded as a most in- 
sufficient punishment for weighty offences, and forfeiture to 
the king was introduced. Very probably, also, the old 
money fines were not thought sufficient to repress disorder. 1 
With time, Church and king became more and more 
united in support of centralized government, administrative, 
legislative and judicial, as opposed to a diffused and weaker 
system of local self-government and large personal independ- 
ence. " The great struggle," writes Kemble, " assumed the 
new form of offences against the state" and state energies 
were more and more directed to punishing as crimes acts 
formerly regarded simply as unfortunate harms to an indi- 
vidual. 2 Offences of an especially serious character, or such 
as were altogether too prevalent, were made " botless," and 
the state itself inflicted the penalty. From strong King Al- 
fred's reign non - finable offences are multiplied, 3 and even 
injuries for which compensation was still socially per- 
missible, were threatened with punishment at the will of the 
king. 4 Moreover^ the king possessed large powers of par- 
doning.s By the dooms of Ine of Wessex (688-725), 
fighting in the king's house is punished by the loss of all 
property, and death or life at the king's pleasure. 6 In this 
reign the dooms confer considerable power upon the 
Church ; a few sins are punished by fines, but almost no 
crimes are mentioned. Offences are still generally regarded 
as torts. In the Kentish dooms of Hlothar and Eadric (673- 
686) no crimes and no sins against the Church are men- 
tioned. All are laws of tort. 7 Of the twenty-eight dooms 
of Whitraed King of Kent (690-725), the first four relate to 

* Kemble, ii, 50. * Ibid., ii, 50-1. 
s Adams, p. 277-8. 

* Alfred, ii, § 6, Thorpe, p. 30; Cnut, ii, § 36, Thorpe, p. 171. 

•Alfred, ii, § 7, Thorpe, p. 30; Ine, § 36, Thorpe, p. 54; Cnut, ii, §13, Thorpe, 
p. 164. 

* Ine, § 6, Thorpe, p. 46. T Thorpe, pp. 1 1-15. 



The Anglo-Saxons in England 137 

the Church, giving it " freedom from imposts " and other- 
wise strengthening its authority, and a very large propor- 
tion relate to composition for sins, such as Sunday labor, 1 
offerings to devils, 2 and eating flesh on fast days. 3 Doom 
26 shows a development of the king's power to regulate 
punishment for theft. There are no true crimes mentioned. 
During King Alfred's noble reign (871-901), there is a 
very marked increase in the power of the king and of the 
Christian Church, as manifested and safe-guarded by penal 
and criminal dooms. The Code opens with forty-eight 
dooms of Almighty God, beginning with the Ten Command- 
ments. Death is the penalty decreed for very many sins. 4 
Of the seventy-seven secular dooms, most reproduce the 
customary tariff fines for personal and other injuries ; but 
No. 42 is very important, for Alfred was strong enough to 
enact a true criminal ordinance, forbidding private ven- 
geance until after compensation had been sought in the 
popular courts of justice. 5 To enforce this doom needed a 
mighty king, well supported by public opinion. At the end 
of Alfred's ecclesiastical ordinances, and again by No. 4 of 
the secular dooms, " treason against a lord" is declared to 
be " botless," i. e., made a true crime, unatonable by money 
fine, and death and forfeiture of goods are decreed against 
it. 6 This is a great change from ancient custom, and was 
probably effected through the influence of the Church, for 
the doom is decreed on the authority of the Bible. 7 The 
ecclesiastical ordinance reads as follows : " Many Synods 
assembled .... among the English race, after they had 
received the faith of Christ, of holy bishops and also of 
other exhalted 'witan.' They then ordained, out of that 

1 Whitraed, §§ 9, 10, II, Thorpe, p. 17. * Ibid., §§ 12 and 13, Thorpe, p. 18. 
1 Ibid., §§ 14 and 15, Thorpe, p. 18. 

* Alfred, i, 14, 30, 31, 32, Thorpe, pp. 21-24. 

* Alfred, ii, 42, Thorpe, p. 40. fi Thorpe, pp, 28-9, T Ibid., p. 26. 



1 38 Wise King Alfred 

mercy which Christ had taught, that secular lords, with 
their leave, might, without sin, take for almost every mis- 
deed, for the first offence, the money-'bot' which they then 
ordained ; except in cases of treason against a lord, to 
which they dared not assign any mercy, because God Al- 
mighty adjudged none to them who despised him, nor did 
Christ, the Son of God, adjudge any to him who sold him to 
death ; and he commanded that a lord should be loved as 
one's self." 1 But King Alfred, notwithstanding these most 
important innovations, wished it understood that his dooms 
were but a compilation of the good laws long in force 
among his people, namely, the dooms proclaimed by Ine 
of Wessex, Offa of Mercia, and Aethelberght of Kent. As he 
himself tells us: "I then, Alfred, king, gathered these to- 
gether and commanded many of those to be written which 
our forefathers held, those which seemed to me good ; and 
many of those which seemed to me not good I rejected 
them by the counsel of my witan .... for I durst not ven- 
ture to set down in writing much of my own." 2 The dooms 
of King Cnut and of William the Conqueror give similar rec 
ognition and royal enforcement of the ancient customary 
laws. 3 Thus we see how carefully and very jealously the 
people guarded their ancient penal customs, when even their 
wisest and strongest kings had to introduce most necessary 
changes as it were by stealth, and with the greatest care .not 
to awaken too strong public indignation. 4 

1 Alfred's Dooms, Thorpe, p. 26. 2 Ibid. 

3 Cnut, ii, 1, Thorpe, p. 161 ; Wm. the Conq., i, Thorpe, p. 201. 

4 " Men lived according to their customs, long before these customs were touched 
by the state. The state commenced its control by undertaking to enforce these 
customs, and it was only at a late period that it ventured gradually to alter them." 
The English judges to-day, "professing to expound only, and to develop, not to 
make the law, employed no legal fiction, but simply stated the very truth." 
(Hearn, p. 402-3.) " It needs but little reflection to understand how much more 
of the security and comfort of our daily life we owe to the action of custom than 
to the protection of law." (Hearn, p. 407.) 



The Anglo-Saxons in England 1 39 

Gradually the nation was educated to new ideas, the laws 
were hardened, and the king's authority steadily increased, 
innovations being made, chiefly, by the plea that unauthor- 
ized vengeance was a violation of the king's peace. " Not, 
however, till long after the Conquest, was the king able, by 
means of this plea, to attract to himself the whole criminal 
jurisdiction, and finally put an end to private warfare and pri- 
vate revenge." " This progress and development is marked 
in the penal law of the Anglo-Saxons by the transfer 
of many acts from the category of torts to that of crimes ; 
the essential difference being that society now punished 
as an offence against itself, acts formerly punishable only 
by request and prosecution of the person harmed. Be- 
sides such transfers, the laws declared many sins to be 
crimes, and other deeds were for the first time made crimi- 
nal, largely in the direction of offences against the growing 
power of the king, which, as we have seen, was most neces- 
sary for the social welfare. The imposition of a social pen- 
alty necessarily implies offenders to be punished, and with 
each newly-created crime an increase in the number of 
criminals. But were these laws enforced? For if not, then 
the actions they aimed to punish were not crimes. Records 
from Anglo-Saxon times are scanty. The age was one of 
violence and blood-shedding. Might was very generally 
regarded as making right. The laws bore far more heavily 
on the poor and weak than on the strong and powerful. A 
noble could murder and be quit for a fine, he could steal 
once or twice and his money would free him ; but slaves, 
women and men of low degree were branded, mutilated, 
killed, even burnt alive, for theft and other petty offences. 
As to the means for the enforcement of the laws : " There 
was not a single person in the realm (outlaws excepted) 
who did not, either directly or indirectly, give some kind of 

1 Cherry, p. 82. 



1 40 Outlawry 

security to the state for his good behavior." ■ Throughout 
the land men were organized in tithings, or groups of ten, 
each collectively responsible for the right conduct of its 
members. After the Danish conquest, in the early eleventh 
century, the peace-pledge, or custom of " reciprocal war- 
ranty " was clearly defined and rigorously enforced, in the at- 
tempt to repress assassination and other forms of violence. 
The townsman who entertained a guest even for a single 
night must be responsible for any evil he might do. There 
was watch and ward upon the highways and at the gates of 
the city. Yet human life continued to be held very cheap 
and property was secure only to the strong. Under power- 
ful kings a stern determination to suppress violence is 
plainly manifest in the laws, and there is reason to believe 
the actions declared to be crimes were very frequently pun- 
ished with outlawry, if in no other way. In modern times 
the criminal usually remains within the protection of the 
law, and the state cannot punish him unless it secures his 
person or property. In Anglo-Saxon days outlaws were 
numerous, and deprivation of all legal safeguard was the 
most common form of social punishment for crime. As we 
have seen, it was no light penalty. 

Edward the Elder, ^Ethelstan, Edmund and Edgar, with 
the counsel of their witan, were strong and masterful legis- 
lators, 2 developing a centralized government, under pressure 
of frequent Danish invasions. In the dooms of ^Ethelstan 
(924-940), the rights of the Church are strongly secured. 
The ordeal is constantly in use. True criminal laws become 
more numerous, many sins being punished as crimes. Trea- 
son, incendiarism, secret murder, false coinage of money, 
denial of justice and support of thieves, applying to the 
king for justice before seeking it in the people's courts, failure 
to attend gemot or to join in attack upon the king's enemy, 
1 Pike, i, 59. " Traill, ii, 168. 



The Anglo-Saxons in England 141 

false witness, witchcraft, perjury and marketing on Sunday 
are socially punished by death, outlawry, forfeiture or heavy 
fine to the king, by mutilation, imprisonment and loss of 
social standing. 1 By Edmund's dooms (940-946) the right 
of private feud was yet more closely limited. None but the 
homicide shall bear the " faehth " (deadly feud). All his 
kindred shall be exempt. And if any one of the kindred 
of the slain take vengeance on any other than the real 
perpetrator, then " let him be foe to the king and all his 
friends and forfeit all that he owns." 2 Unchastity of ecclesi- 
astics was punished by forfeiture of worldly possessions and 
of a consecrated burial-place, unless bot was made to God. 
Fornication and adultery among laymen brought exclusion 
from consecrated ground at death, unless a fine was paid to 
the Church. Perjurers and those who will not pay Church 
tithes are to be excommunicated, 3 and this ban of excom- 
munication was re-enforced by heavy secular penalties, fines 
and confiscations, during Edgar's reign. Church tithes 
must be paid at appointed seasons. He who will not pay 
becomes a criminal as well as sinner. 4 Sunday must be ob- 
served on peril of the full " wite " (fine to the king) in the 
doom book. 5 These laws show a great increase in Church 
authority, due in great measure to Archbishop Dunstan, then 
the greatest man in Church and State. 6 King Edgar (959- 
975) begins his dooms with an ordinance that the hundred 
gemot shall meet every four weeks " and that every man 
do justice to another." 7 By this time the cattle thief had 
become a true criminal, so far as laws could make him 
one, and all must unite in his pursuit and punishment. He 

1 ^Ethelst, i, 3, 4, 6, 7, 10, 14, 20, 24, 25, and iv, 6; Thorpe, pp. 85-90, and 93-5. 

2 Edmund, Secular Dooms, i, Thorpe, p. 105. 
3 Edmund, i, 1, 2, 4, 6, Thorpe, p. 104-105. 

* Edgar, i, 3 and 4, Thorpe, p. 111-112. 5 Ibid., i, 5, Thorpe, p. 112 

•Freeman, i, 63. 7 Thorpe, p. 109. 



142 The Old Folk- Laws 

who will not pursue must pay a fine to the king, and for the 
fourth offence, forfeit all that he has and become an outlaw. 1 
This law and Doom 7 of the Secular Law, relating to an old 
offender and a man " untrue to the people," show popular 
trial, conviction and execution of the law against true crimi- 
nals. 2 Death is the penalty for the " notorious thief," and 
him " who is found plotting against his lord," unless the king 
pardon them. The king wills " that every man be worthy 
of ' folk-right' (the common or customary law of the land), 
as well rich as poor, and that righteous dooms be judged to 
him." 3 And again : 4< I will that secular rights stand among 
the Danes with as good laws as they best may choose." 4 
■' No man must apply to the king in any suit, unless he at 
home may not be worthy of law or cannot obtain law;" 5 
showing that all men were subject to the old customary laws, 
sprung from the will of the people and owing their chief 
authority to social support. The king in theory simply 
sanctions and defends, yet by Edgar's time the old Teutonic 
dooms have been so modified that half the laws relate to 
crimes. In Athelberght's dooms we found not one. 

But in the long reign of ^Ethelred the Unready (978- 
1 016), especially after Dunstan's strong hand was removed by 
death, there was a speedy reversion to composition and laws 
of tort, under a weak king, in troublous times. Offences 
ceased to be punished as crimes and consequently the num- 
ber of criminals must have decreased, while society was 
retrograding. The numerous ordinances, for the most part, 
only pray and instruct ; there are many repetitions and but 
few commands with penalties. When any penalty is men- 
tioned, it is almost always the " bot," or fine for tort, 

1 Edgar, i, 2 and 3, Thorpe, p. 1 10. 

1 Ibid., ii, 7, Thorpe, pp. 1 13-4. 3 Ibid., ii, I, Thorpe, p. 112. 

* See Supplement to Edgar's Dooms, 2, Thorpe, p. 1 1 6. 

* Edgar, ii, 2; Thorpe, p. 112. 



The Anglo-Saxons in England 143 

awarded to the individual harmed. Thus, in the dooms or- 
dained at Wantage, any breach of the peace, excepting that 
given by the king's own hand, is to be compounded for by 
" bot " only. 1 Murder and homicide can thus be paid for 
by " bot" to the kindred of the slain, and no " wite," or fine 
for breach of the king's or folk peace is exacted. 2 How 
very different from the banishment ordained for all " frith " 
(peace) breakers by King Aethelstan and his witan. 3 

Under Cnut, the great Dane, more English than the 
English, the old folk laws are again proclaimed and enforced, 
" God's justice " is exalted, and there are many ecclesiastical 
ordinances. Many offences are again changed from torts 
into crimes ; new crimes are created and wise distinctions 
made. Death or banishment are the penalties decreed 
against witches, diviners, perjurers and adulteresses, against 
outlaws and man-slayers, notorious thieves and public 
robbers, unless they amend their ways. 4 Sheltering an 
excommunicated person or an outlaw, and cowardice in 
fleeing from military service bring death and forfeiture of 
goods. 5 " House-breaking and arson and open theft and 
open morth (secret homicide), and treason against a lord 
are, by the secular law, ■ botless.' " 6 Edward the Confessor 
was a weak king, and during his reign very little was added 
to existing penal legislation, but he confirmed the old 
dooms of his people, which have ever since been known in 
England as the good laws of Edward the Confessor. 

In conclusion : Anglo-Saxon history reveals a progressive 
increase in the number of actions declared to be criminal by 
the laws ; and since outlawry was easily enforced against all 
but the strongest, it is probable that society, though weakly 

'iEthelred, iii, I, Thorpe, p. 124. * Ibid., i, 5, Thorpe, p. 122. 

1 Aethelstan, ir, Thorpe, p. 93. 

*Cnut, ii, 4, 6, Thorpe, p. 162. ' Ibid., ii, 67, 78, Thorpe, pp. 176. 180. 

*/bid.,ii, 65, Thorpe, p. 176. 



1 44 Converting Tort into Crime 

organized, frequently succeeded in inflicting this, or some 
other penalty for offences it deemed most heinous, Anglo- 
Saxon states were busy turning torts into crimes, making sins 
crimes for the benefit of the Christian Church, and other 
actions criminal for the safeguarding and upbuilding of the 
royal power. Every new action socially punished as crime 
necessitated an addition to the existing body of criminals 
and an increase in the amount of crime. For criminal laws 
are not established by a community unless there are, at the 
time, enough offenders to make the need for repression dis- 
tinctly felt. By earliest Anglo-Saxon dooms, the man who 
by a passionate blow killed his serf or little son, was no more 
a criminal than the modern father who punishes his child for 
disobedience. Ordinary homicide and theft became crimes 
only when society recognized and punished these acts as 
wrongs against itself, and ceased to think of them simply as 
unfortunate harms to an individual, for which pecuniary 
damages might be sought in civil action. As fast as society 
declared penal offences to be botless, it added to the existing 
number of crimes and therefore of criminals also. Crime is 
a social product, and was increasing throughout the Anglo- 
Saxon centuries, keeping pace with the growing power of the 
two great factors, the king and the Christian Church, making 
for strong national unity and internal peace — the greatest 
needs of the Anglo-Saxon peoples. 

New criminal laws safeguarded each advance in the right 
direction; but these laws were abrogated and crimes de- 
creased when society was retrograding, as in Aethelred's 
days, by a return to laws of tort and individual vengeance. 

New crimes took the direction of greatest resistance to the 
new life — the upward development — of the people ; for they 
were acts in opposition to the power of the king and of the 
Christian Church, the two strong forces making toward 
centralization and unity. The needs of the times demanded 



The Anglo-Saxons in England 145 

the creation and enforcement by society of these new prohi- 
bitions, 1 which were therefore neither accidental nor whim- 
sical, but inevitable consequences of increasing complexity 
of social life, of growth in knowledge, intelligence and social 
morality. 

1 Crimes — Heathen Anglo-Saxons. — Treason, cowardice, incest (death). 
Christian Anglo-Saxons. — Treason, cowardice, incest (Edgar, ii, 34, Cnut, 37, 
Alfred). Non-payment of fines decreed by court (outlawry); continual 
breaches of the folk peace (outlawry) ; harboring or aiding outlaws (forfeiture 
and outlawry) ; all unauthorized revenge (fines) ; an appeal to the king for jus- 
tice before seeking it in the people's court (fines) ; denial of justice and neglect.of 
duty menacing the public welfare; treason against the person of the king or a 
lord (death); many sins punished as crimes; the notorious thief, cattle thief and 
public robber; house-breaking, arson, and secret homicide; false coinage; witches, 
diviners and adulteresses. In Edgar's time one-half the doomsjrelate to crimes. 
In Aethelberght's, not one criminal law is found. 



CHAPTER VII 

ENGLAND UNDER NORMANS AND PLANTAGENETS. IO66-I307 

The whole Anglo-Saxon period of English history was 
marked, as we have seen, by a long struggle for national 
unity, unsuccessful because of the lack of a strong central 
government. The inveterate Teutonic tendency to split up 
into little warring, independent states, proved too strong for 
the increasing power of native kings and of the Christian 
Church, and required the strong arm of a foreign conqueror 
and a succession of despotic rulers, resolute to enforce law 
and order in their dominions, before the people of England 
could become a united nation. Such a government Eng- 
land obtained in her Norman kings, who succeeded, during 
the next century and a half, in building up, with the aid of 
the common people, a strong, united kingdom. Suddenly, 
in the reign of John, we find that the Normans had become 
Englishmen, the English had become united. This great 
work of nation building was accomplished mainly through 
the unification and enforcement of more equal law (mostly 
criminal), by the extension of the king's peace and royal 
justice over all the land. The problem, in the words of 
Henry II., was how to make " all men equal under one strong 
law." First the feudal nobility, then the king himself, then 
the Christian Church, had to be curbed and brought under 
this law : the mould in which a strong nation, a free people 
and a constitutional kingship were run. It was no easy prob- 
lem this; and the great game required many moves and 
many curious combinations of attack and defence, before the 
king was checkmated and the people won. But not the 

(146) 



England under Normans and Plantagenets 147 

commons only; for in the long struggle, the clashing fac- 
tions were united into a great, free nation ; the vanquished 
found themselves the victors, and the beaten king was more 
powerful as a constitutional monarch than any of his des- 
potic ancestors, for he could rely on the support of all his 
people, now that " that which touches all has become the 
concern of all," under more equal law, more equal justice 
and representative, parliamentary government. 

From the conquest of England (1066) to the loss of Nor- 
mandy (1205), the chief constitutional fact was the union of 
king and people against the feudal nobility. The long con- 
flict meant the extension and enforcement of a true criminal 
law, among men who had hitherto been, in large part, a law 
unto themselves and their dependents, because social justice 
could not reach so far. To secure military efficiency and 
some degree of order and stability, feudalism, with its mul- 
titude of petty tyrants, was a social necessity upon the con- 
tinent of Europe. Even high-handed misrule was far better 
than anarchy, when anarchy meant destruction. But in 
England the time was come for better things — a time when 
all the clashing forms of private half-justice and tribal legal- 
custom should be gathered up and united into one common 
law, enforced over all the land by the might of king and 
people. From the very first Anglo-Saxon penal law was 
aristocratic in its tendencies. " Not only did it consecrate 
the barriers between classes, making a distinction between 
those who were ' dearly born ' and those who were ' cheaply 
born,' but it raised those barriers by impoverishing the 
poorer folk." 1 It taught all men to consider justice as a 
means of revenue for the individual and for the state, so 
that no one thought of giving justice for nothing; and it 
set a price upon almost everything. The laws were very 
fragmentary, and the various tariffs clashed. The free people 

1 Maitland and Pollock, ii, 458. 



148 The Nation s Greatest Need 

were themselves the judges and could administer only a 
simple, unprogressive customary law, which became more 
and more unfitted to meet the complex requirements of 
more active Norman times. " The great need " of England, 
after the Conquest, was undoubtedly (as Maitland states) that 
the ancient system of money compositions, bot and wer and 
wite, should give way before a system of true punishments. 1 
Tort must be changed into crime, for the social welfare so 
demanded. This change, in its historic setting, meant the 
unification and enforcement of a strong criminal law over all 
classes ; it meant in great measure the building of the 
nation ; it meant also the rapid increase of crime and crim- 
inals. In the process we shall find the ancient rights and 
liberties of Englishmen preserved, strengthened, amplified. 
This is how it happened. 

William the Norman was undoubtedly a dictator, but he 
was a dictator under constitutional forms. He came to Eng- 
land as the legitimate successor to the throne. Though a 
usurper, he had himself elected and crowned king by the 
Witan, after the death of Harold, and took the kingly oath 
to preserve and maintain the laws and liberties of the English 
people. But he had other and weighty reasons for maintain- 
ing local self-government and the judicial and penal author- 
ity of the people's courts. Normandy was a feudal princi- 
pality. England was but half feudalized. William wished to 
secure for his new kingdom the military strength and cen- 
tralized authority of the feudal system, while avoiding its 
chief danger — already painfully apparent to him in Nor- 
mandy — the massing of too great power in the hands of the 
leading feudatories. While abundantly rewarding all his fol- 
lowers, he yet scattered the estates of his greater barons 
throughout England, thus largely limiting their power. Also, 
he sought the support of the people, appearing as their de- 

1 Maitland and Pollock, i, 51. 



England under Normans and Plantagenets 1 49 

fender against the rapacity of the Norman nobility, and main- 
taining the jurisdiction of the old courts — the hundred and 
the shire — with their time-honored laws and customs of self- 
government. He maintained likewise the old English yeo- 
manry, the fyrd or national militia, 1 made it dependent upon 
his summons, and caused every householder in England to 
swear loyalty to him personally, as against any other lord 
whatsoever. In this way he preserved the roots of popular 
liberty, and gained for himself and his successors the strong 
support of the people in the long hundred-years struggle to 
curb the Norman baronage, a struggle ending in the almost 
complete destruction of the old nobility. 

For the first time England had secured a really strong and 
stable central government. What the people loved in their 
Norman kings was the good peace they made in the land ; 
a peace unexampled elsewhere, allowing agriculture and 
industry to thrive as they had never done before, and making 
England a storehouse from which the distracted nations of 
Europe purchased the necessaries of life. Under Anglo- 
Saxon rulers the protection of the king's peace had been 
either local or temporary. William I. extended his peace to 
all his subjects, English as well as French, and this protection 
meant far more than of old, for William put down the robber, 
murderer and ravisher with a strong hand. Such security 
had never been known in England as during his latter years 
of peaceful reign, and " as the stern avenger of crime, even 
the conquered learned to bless him." 2 In the words of the 
old chronicle : " No man durst slay other man, had he never 
so mickle evil done to the other." " Stark he was to those 
who withstood his will, but he was mild to the good men 
who loved God." And it passed into a proverb that a man 
"who in himself was aught" (*. e., who had any confidence 

Traill, i, 235. 

' Freeman, ii, 170; and Anglo-Saxon Chronicle, Anno 1087. 



150 William the Conqueror 

in his own manhood) " might go in safety through William's 
realm with his bosom full of gold." ' Royal justice was, how- 
ever, the exception during all the Norman period. The 
Conqueror kept his oath to maintain " the good laws of Ed- 
ward the Confessor," and these old customs of the English 
were promulgated and confirmed many times by his descend- 
ants, and enforced, as formerly, by the people, through the 
local courts of the hundred and the shire, whether communal 
or seigniorial. Probably the Normans brought with them to 
England but few crystallized legal ideas and institutions. 
" Written laws they had none." 2 After the Conquest, William 
introduced the celebrated murdrum, or murder fine ; for the 
lives of his followers must be protected, and if the commun- 
ity could not produce the man-slayer, it must itself be held 
responsible and pay the fine. This was called the law of 
Englishry. Every man found murdered was considered a 
Frenchman till the contrary was proved : a presumption very 
advantageous to the king's exchequer, and showing the strong 
tendency to make money out of justice in those days. But 
there was surprisingly little new legislation of any kind. 
Under William Rufus there were no new laws, but he re- 
pressed the feudal nobility as sternly as did his father, and 
when they rebelled against him, owed his crown to the valor 
of the conquered English. 3 In this reign the " race of feudal 
lawyers " begins " to creep into light." Later on we shall 
watch them modifying antiquated laws to meet new needs. 

Despite the many crimes and vices of Henry I., " the 
Lion of Justice," he is described by impartial men and eye- 
witnesses as " the almost perfect model of a king." Why? 
He was a despot, doing good, and just what England 
needed. In his hands the sword of justice was sharp, and it 

1 Angle-Saxon Chronicle, Anno 1087. 

3 Traill, i, 275 ; Maitland and Pollock, i, 72-3. 

■ Anglo-Saxon Chronicle, Anno 1088. 



England under Normans and Plantagenets 1 5 1 

is written that all men, great and small, French and English, 
had to bow before it. " Durst none man misdo with other in 
his time." A special law decreed death by hanging for 
all thieves and robbers, and we know that this penalty and 
many others were frequently enforced, even against the 
king's own followers. 1 Henry I. extended the rights of the 
crown beyond the limits set by his charter (1100) and 
u evolved a law for his tenants- in-chief, which was perhaps 
the severest law in Europe." 2 However, when Henry died, 
M little had yet been done toward centralizing justice," and in 
the woeful days of Stephen it looked as if English law would 
break into a hundred local customs, if it survived at all. 3 
Then, for the first and last time, the Norman nobility gained 
complete control of the kingdom, and horribly did they mis- 
use their power. The Chronicle has left us a most vivid 
picture of this time of utter lawlessness : " When every rich 

man his castles made and filled them with devils 

and evil men." " If two men or three came riding to a 
town all the township fled for them and weened that they 
were reavers." 4 Many acts, formerly crimes, became no 
longer criminal, as is almost always the case when society 
is sick and degenerating. " Every man who had the power 

1 For many centuries theft and robbery, " in their coarsest form," were punished 
with death. Stephen, iii, 128. "Rex Anglorum Heinricus pacem firmam 
legemque talem constituit, ut, si quisinfurto vel latrocinio deprehensus fuisset sus- 
penderetur." Flor. Wig., Anno 1 108, ii, 57. One reason for this extreme severity may 
have been the great social need of fostering the accumulation of property. There 
was comparatively little wealth in th« world then, and what existed was very 
largely in the hands of the nobility and clergy, whose influence was dominant in 
the making of the laws. 

2 Anglo-Saxon Chronicle, Annis 1124 and 11 25, for legislation concerning theft 
and coining, abuses of royal purveyance and bad money. Also Eadmer, Hist., 
Nov., p. 94; Wm. of Malms., Gesta Regum, ii, 627. For legislation concerning 
measures see Gesta Regum, ii, 641. See also Maitland and Pollock, i, 73. 

3 Maitland and Pollock, i, 87. 

K Anglo-Saxon Chronicle, Anno 1 137. 



1 5 2 Woeful Days of Stephen 

did that which was right in his own eyes." r Robbery- 
ceased to be a crime, for the great and powerful of the land 
mostly lived by spoliation as their acknowledged right. 
The picture is not of men waging war. " Every man who 
had the means to build himself a castle made it the centre of 
general havoc, of spoil for the sake of spoil, it would seem 
of torture for the sake of torture." There was no regard for 
sex, rank or calling. 2 The human fiends who did these 
deeds were not criminals, for society had ceased to punish 
such acts as crimes and seemed in the very throes of disso- 
lution. For the certainty and severity of punishment are in- 
dices of the degree of social displeasure, or, in other words, 
of the idea of criminality, occasioned by an act. In times 
of national disorganization and anarchy, social energies are 
paralyzed or directed into other channels than that of jus- 
tice. Wrongs remain unpunished, and this lack of punish- 
ment causes in many minds the total loss, or serious weaken- 
ing, of the idea of criminality formerly associated with the 
act, and this the more easily in proportion as the conduct 
has only recently been made criminal. Thus society degen- 
erates. For some reason, the punishment of malefactors 
becomes less sure than formerly. Then, their bad actions, 
grown common and frequently leading to success, waken 
less and less of the idea of criminality in the minds of the 
community. What the poet sings of vice is largely true of 
crime : 

" Yet seen too oft, familiar with her face, 
We first endure, then pity, then embrace." 

Pope, Essay on Man, Epi. ii, line 217. 

Sometimes social degradation takes the reverse course, and 
apathy or blindness to the evil in bad acts precedes their 
freedom from punishment as crimes ; but for enduring social 
progress to higher civilization, both a keen and sensitive so- 

1 Freeman, ▼, 242. 2 Ibid., v, 284. 



England under Normans and Plantagenets 153 

cial disapproval of acts dangerous to national welfare and a 
strong and sure enforcement of prohibitory laws are neces- 
sary. Weakness in one generates weakness in the other. 
Crime ceases to be punished. Crime ceases to be crime. 

" After the nineteen winters of King Stephen, 
A reign which was no reign, when none could sit 
By his own hearth in peace; when murder common 
As nature's death, like Egypt's plague, had rilled 
All things with blood; when every doorway blushed, 
Dashed red with that unhallow'd passover; 
When ever} r baron ground his blade in blood; 
The household dough was kneaded up with blood; 
The mill-wheel turned in blood; the wholesome plow 
Lay rusting iD the furrow's yellow weeds, 
Till famine dwarft the race." x 

But all this was changed when Henry II. came to the 
throne. Lord of half France, as well as all England, his 
power was very great, and he was most resolute that all 
men, great and small, should be equal before the law. His 
first work was the destruction of two hundred castles of the 
robber barons, and the whole of his thirty-five years' reign 
was employed in strengthening, extending and enforcing 
royal justice. a From this time," writes Stubbs, " the reign 
of law may be said to have begun in England." " Perhaps 
no king ever did more lasting good to his people. 2 " 

In the reign of Richard I. all things were salable, and 
some of the larger cities purchased their liberties from the 
king — a most important step in upward social progress. 
Despite the continuous absence of the sovereign, and the 
heavy taxation made necessary by his foreign wars, England 
prospered greatly. Already the freest and most orderly 
nation in Europe, it was fast becoming the wealthiest nation 
also. 3 Since the imposition of scutage under Henry II., the 

1 Tennyson, Becket, pp. 57, 58. 2 Traill, i, 261. 

J The population of England was small at this time, not more than 1,500,000 to 
2,000,000 inhabitants, concentrated in the south and east. The vast majority of 
the people were farmers. Traill, i, 362, 367, 452. 



154 The Great Charter 

nobility had become country gentlemen, and were much 
more trusted and popular among the people. The reign of 
John made this plainly evident, when clergy, baronage and 
people all united to curb the detestable tyranny of an utterly 
vicious king. He had quarrelled with the king of France, 
and lost Normandy forever ; with the pope, and been hum- 
bled in the dust; with all his people, and the result was 
Runnymede and Magna Charta, extending criminal law over 
the king himself. The opportune death of John preserved 
the throne for his infant son, Henry III. ; but he soon 
proved himself a thoroughly weak sovereign, ruled by his 
favorites, who were hated by the people. There were but 
two acts of statute law in all his long reign — a reign filled with 
attempts to enforce Magna Charta upon an unwilling king, 
whose power for evil there seemed no practicable way to 
limit. The genius of Simon de Montfort began the solution 
of this great problem — how to make the king subject to the 
laws — by the creation of a Parliament, in which nobles, 
clergy, knights of the shire and burgesses from the towns 
united to represent the entire nation. Edward I., the pupil 
and conqueror of Simon, took up the work he had begun, 
and, under better auspices, pushed it to a glorious comple- 
tion in the model Parliament of 1295, thus establishing upon 
a firm basis the English Constitution. 1 But to return to the 
growth of royal justice. 

Under the wise rule of Henry II., " the king's own court 
flung open its doors to all manner of people, became a 
bench of professional justices, and appeared periodically in 
all the counties of England." 2 Henry concentrated the whole 
legal system of the nation around these judges expert in the 
law, put the Frankish inquest at the disposal of all his sub- 
jects, caused many actions to be removed into the king's 
court, and ordained that the inquest should be used in crim- 

1 Stubbs, Select Charters, Introduction. 2 Traill, i, 277. 



England under Normans and Plantagenets 155 

inal procedure for great offences, upon a 4< large scale and as 
a matter of ordinary justice," by both sheriffs and royal 
justices. 1 The king could thus win both power and money. 
M He could control and he could starve the courts of the 
feudatories." His justice was so much better than theirs 
that the people, small folk as well as great, sought it gladly. 3 
But they had to pay for it. How? By fines, fees and 
amercements. The way of justice in those days was 
tangled in a most intricate web of ceremonial rules, which 
were most strictly observed. A slip, a stammer, in uttering 
the set form of words, would spoil everything and give the 
suit to the adversary, unless the error was discounted by a 
fine paid to the state. He must indeed have been a bright 
and skillful man who expected to pass through a legal suit 
without one or more such fines. This evident intention to 
make a revenue from justice, as a substitute for taxation, 
must be borne in mind, when estimating the possible crim- 
inality of those on whom the multitudinous small fines were 
imposed. " Only by slow degrees, and in a haphazard way, 
do any inquiries about ordinary and non-official crimes that 
are less than felonies steal their way into the articles" of the 
inquest. 3 In the past, even gravest misdeeds had been re- 
garded chiefly as a means of revenue to the person harmed, 
his right of vengeance being surrendered for a money com- 
position. The arbitrators, or judges, also, had to be recom- 
pensed for their services in securing the pardon of the guilty 
man. The actions were not crimes, but torts. During Nor- 

1 The Frankish inquest is one of the very few legal institutions which we are 
practically sure was imported from Normandy; but it has in it the germ of trial 
by jury — the most distinctively English feature in the English law of the middle 
ages. Maitland and Pollock, i, 72. 

2 The intrusion of the king's judges into the popular courts really preserved the 
popular element by causing it to take a new form, one better suited than the an- 
cient one for the needs of civilization. Freeman, v, 458. 

3 Maitland and Pollock, ii, 520. 



156 Amercements 

man times, while the great offences were slowly being 
changed into crimes, the old procedure was still in use for 
minor offences, the " delites" mentioned in Magna Charta. 1 
This branch of ancient penal law was " wide and indefinite to 
the last degree," and was much " used for oppressive and 
corrupt purposes." 2 The punishments inflicted were mainly- 
small money fines, called amercements — three-penny 
amercements being common. In the reign of Edward I. 
we learn that " the causes for fines were now very numerous, 
and the king preferred a power of inflicting many small pen- 
alties to that of demanding heavy sums in a few grave 
cases." 3 " Every tort, nay every cause of civil action, was a 
punishable offence;" every defeated plaintiff could be 
amerced for a false claim, " every mistake in pleading 
brought an amercement. Most men in England must 
have expected to be amerced at least once a year," for the 
English were very fond of litigation. 4 A few cases are on 
record when real crimes were punished simply by amerce- 
ment to the king, 5 but the very great majority of the men 
fined in this way, cannot, by the widest stretch of the name, 
be considered criminals. The king was evidently seeking 
revenue, therefore he developed this profitable system of 
fines, which, because customary, would not excite the indig- 
nation or opposition caused by a tax. The royal justices 
collected a very large sum total for " putting in mercy" 
communities neglecting to make " suit" or " hue and cry," 
that is, to perform their police duties. Thus the justices in 
Eyre who held sessions at Gloucester in 1221, " raised some 
^430 by about 220 fines and amercements, the profits of 

1 See article 20 of Magna Charta. 

2 Stephen, ii, 192-8. 

3 Maitland and Pollock, ii, 516; Northumberland Assize Rolls, pp. 92, 94. 

4 Maitland and Pollock, ii, 512, 517-8. 

5 See Northumberland Assize Rolls, pp. 92, 94, where two men, convicted of 
rape, were fined I mark, and at once set free on finding security. 



England under Normans and Plantagenets 1 5 7 

minor offences, chiefly the offences of communities." 1 Prob- 
ably the major part of these fines were collected from whole 
neighborhoods of law-abiding citizens, as the times go ; so 
that, unless we hold almost all Englishmen to have been 
criminals, we must regard these amercements chiefly as 
a means of revenue to the king, in extension of the ancient 
custom of recompensing arbitrators and judges for their 
services. 

Henry II. laid, broad and strong, the foundation for all 
future English justice. In his reign began the process by 
which the custom of the king's court became the common 
law of England. 2 This court based its judgments mainly 
upon the ancient dooms of the Anglo-Saxons, which feudal 
lawyers had translated into Latin as best they could, early 
in the twelfth century. In their translation it was almost 
inevitable that the old dooms should be modified to suit a 
new age, and also they added something drawn from foreign 
sources. 3 Since the Conquest, the king's court had been a 
French court, and its hands were very free. The old Eng- 
lish laws were almost unintelligible to it, and by the twelfth 
century these " laws dealt with crime in a hopelessly old- 
fashioned way." There was no written Norman code, and 
as a result the court was very largely a law unto itself. 4 
Naturally, the royal justices were careful to preserve what- 
ever in the old dooms strengthened the power of the king, 
as against the feudal baronage, and whatever poured money 
into the royal treasury, like the ancient system of petty fines 
and amercements. Through the latter half of the twelfth 
and all of the thirteenth century, the extension of the king's 
peace, by the decisions of these royal justices, and the 
building up of a new case law, or law of precedent, went 
rapidly forward. Every action of trespass or assault in the 

1 Maitland and Pollock, ii, 555; and Gloucestershire Pleas. 

1 Traill, i, 277. ■ Ibid., i, 276-7. * Ibid., i, 277-80. 



! 5^ Jurisdiction of the Kings Court 

king's court presupposed a breach of the king's peace, and 
Glanvill, the earliest writer upon English law, informs us 
that even in his day some four or five words about the peace 
of our lord the king enabled an accuser to " place an assault 
outside the competence of the local courts." J In Bracton's 
time appellors were both permitted and encouraged to use 
such a form of words, which had become "the almost in- 
variable preamble of every charge of grave crime." 2 Thus 
all serious forms of delinquency then known were gradually 
brought under the jurisdiction of the king's court, and the 
king's peace made " an all-embracing atmosphere." 3 

Felony was at this time becoming a name for the worst, 
the botless crimes. Larceny was the last of the great 
offences to become a plea of the crown under cover of a 
phrase charging the thief with breaking the king's peace. 4 
In Glanvill's day it was still half tort, an actio dupli, for 
which the plaintiff might recover twice the value of the 
stolen property. 5 

Side by side with this extension of the king's peace went 
the increase in the reserved pleas of the crown. Through- 

1 " Nisi accusator adiciat de pace domini Regis infracta." Glanvill, i, 2-4. For 
the great importance of these words, see the Select Pleas of the Crown, pi. 21, 31, 
88, 172. 

'Maitlandand Pollock, ii, 461-2; Bracton, f. 138, f. 144, etc.; Select Pleas of 
the Crown, pi. 104. 

3 In an accusation for wounding and robbery, the form of words was" as fol- 
lows : " Whereas, the said Alan (was) in the peace of God and of our Lord the 
King, there came the said William, feloniously as a felon, and in premeditated 
assault inflicted a wound on Alan, (and) robbed him of his chattels." Maitland 
and Pollock, ii, 461. 

4 Bracton. f. 150 b. 

5 Glanville, i, 2, xiv, 8; and Laws of Wm. I, Select Charters, c. 5. 

" We must, however, except the crime of theft, which belongs to the sheriffs of 
counties, and is discussed and determined in the county courts. It also apper- 
tains to sheriffs in case of neglect on the part of Lords of Franchise, to take 
cognizance of scuffles, blows and wounds, unless the accuser subjoin to his 
charge that the offence was committed against the king's Peace." Glanville, i, 3. 



England under Normans and Plantagenets 1 59 

out Anglo-Saxon times, we have seen that there were cer- 
tain worst offences which were unemendable and botless, 
that is, could not be paid for in money, no matter where 
they occurred, whether in or outside of the limits of the 
royal peace. Such actions were true crimes, and their 
number was steadily increasing, as society came to regard 
more and more offences as too heinous to be punished only 
by a fine ; too dangerous to be left to the capricious, uncer- 
tain prosecution of the person injured. Such causes came 
to be known as the Reserved Pleas of the Crown, and came 
rightly within the jurisdiction of the king's own court. In 
the reign of Cnut we get the first list of these reserved 
pleas. " These are the rights which the king has over all 
men in Wessex and in Mercia." Breach of the king's 
special peace (grith or mund-bryce) ; hamsocn (attack on 
a man's house); forsteal (ambush); flymena-fyrmth (the 
harboring of fugitives from justice, outlaws) ; and fyrd-wite 
(neglect of military duty). 1 The list looks comprehensive, 
but " in reality it covers very little ground," for every man 
has his own peace. 2 Domesday book shows us " the old 
laws still at work," in William's time. Pleas of the crown 
are few. 3 The customary punishment for some of the worst 
crimes is still outlawry. Many acts (to us serious crimes) 
are still regarded as torts, for which a money equivalent 
should be paid to the sufferer. 4 In the Leges Henrici, we 
find another list of the reserved pleas. Already they extend 
beyond the dooms of Cnut and laws revealed by Domesday 
Book. Botless crimes are treason against one's lord ; breach 
of the Church's or king's special peace when some one is 
killed in the affray ; open-morth (aggravated homicide) ; 

1 Cnut, ii, 12-15. * Maitland and Pollock, ii, 451. 

* D. B., i, 252, 238 b.; i, 179, 269 b.; i, 172. 
4 D. B., 56 b-154 b.; i, 26-i, 172. 



160 The Fountain of Justice 

housebreach, arson, 1 and open theft. Other crimes are 
emendable with a very heavy fine, ioo shillings: breach 
of the king's own peace, obstruction of the king's highway, 
hamsocn, forsteal and the harboring of outlaws. Mere wilful 
homicide is still a tort, and no crime, but can be paid for, as 
of old, to the kindred of the deceased, whose right of ven- 
geance is allowed, if the sum is not made over to them. The 
ancient system of bot and wer and wite lingered on in Nor- 
mandy, when extinct in England ; and we are told that 
Henry II. made good his claim to homicide, robbery, may- 
hem, arson and rape, in his continental dominions, as crimes 
especially belonging to him. 2 

In direct opposition, seemingly, to this policy of extending 
and enforcing the king's own peace and justice, is the ancient 
feudal custom, extensively followed by England's Norman 
rulers, of granting out rights of private jurisdiction to such 
as would pay handsomely for them. Yet this at least implied 
that such rights centred in the king, and were his to sell or 
to withhold. Slowly the idea gains ground that the mon- 
arch is " the Fountain of Justice," and that none can rightly 
judge or punish who is not the king's duly authorized repre- 
sentative. Then, fortunately, the language used in these old 
private grants of jurisdiction became unintelligible, so that 
Angevin lawyers could maintain that they " conferred but 
lowly and impracticable rights." 3 

Suddenly, in the latter half of the twelfth century, the 

1 Arson, an old crime, Leges Henrici, 12, § I. Mentioned by Cnut as botless. 
Cnut, ii, 64. Among the felonies. Bracton, f. 146 b. Punishment was death by 
burning. Britton, i, 41. See a case in King John's reign, when this penalty was 
inflicted. Gloucestershire Pleas, pi. 216. But the fully developed common law 
substituted hanging. The thing burnt must be a house (1220). Select Pleas of 
the Crown, pi. 203; Britton, i, 41. This crime was one of the first in which in- 
tention was distinguished, indeed, had to be. Bracton, f. 146 b. 

J Ed. de Gruchey, p. 195; Ancienne Coutume, c. 85; quoted by Maitland and 
Pollock, ii, 453. 

■ Maitland and Pollock, ii, 454. 



England under Normans and Plantagenets 161 

whole unwieldy system of penal compositions disappears as 
if by an enchanter's wand. In its place we find a simple, 
bold scheme of justice, with large vague outlines. Less than 
a dozen crimes, or " felonies," with wide, crude definitions,' 
" place life and limb in the king's mercy." Ordinary wilful 
homicide is now punished with death. This is an entirely 
new crime. Vengeance and compensation are alike denied 
to the kinsfolk of the slain. 1 

The crimes mentioned by Glanvill are : 

1. Treason, " as the death of the king, or a sedition 
moved in the realm or army." (The word treason itself is 
not used.) 

2. Homicide. 

3. Concealment of treasure trove. 

4. Arson (incendium). 

5. Robbery. 

1 Maitland and Pollock, ii, 458. 

Homicide, murder and manslaughter. The laws before the Conquest treat 
homicide " almost entirely as a wrong;" and "its development after that event 
was very slow." Stephen, iii, 27-8. There was practically no distinction between 
different kinds of homicide; the only approach to such before the Norman 
period, consisting in the introduction of the word " morth-slaying," — homicide by 
stealth, not openly or fairly. A little later comes "murdrum," distinguished at 
first only by idea of secrecy — unknown offender. See Glanvill's definition. Later, 
wilful murder became the name for " an aggravated kind of felonious homicide, 
which was excluded from the benefit of clergy, contrasted with the felonious, but 
1 clergyable' crime of manslaughter." Stephen, iii, 40, 43-5. In Bracton's day, 
those deemed murderers were usually punished with death. Bracton, ii, 406 and 
290. Britton states the penalty as death and forfeiture. Britton,i, 35. The Year- 
Books show the great prevalence of homicide as compared with other offences- 
The sphere of justifiable homicide became very narrow indeed. Society was 
evidently putting on pressure to crush out this dangerous evil. " Even a four-year- 
old child hardly escapes death for killing Robert (aged two) by misadventure." 
Northumberland Assize Rolls, p. 323; Select Pleas of the Crown, pi. 70, 1 14, 188; 
(21 Edward, 1 Stat., 2). This reminds us of the modern Chinese, who flay alive 
a three-year-old child for the horrible crime of accidentally killing his mother. 
(Instance, near Shanghai; account of a missionary.) The act, not the intent, 
constitutes the crime. 



1 62 Crimes i7i Bractori s Day 

6. Rape. 

7. " Generale crimen falsi." * 

He disposes of minor offences in a very few words, merely 
stating that he does not intend to treat of thefts and other 
judgments which pertain to the sheriffs in the people's 
courts. When Bracton wrote, early in the thirteenth cen- 
tury, in the reign of Henry III., English " criminal law con- 
sisted of eleven known offences, crimes or felonies, nearly all 
of which were capital, and an unspecified number of misde- 
meanors." 2 

The felonies were : 

1. Laesa Majestas. 

2. Falsum. 

3. Concealment of Treasure Trove. 

4. Homicide. 

5. Wounding. 

6. Mayhem. 

7. False Imprisonment. 

8. Robbery. 

9. Arson. 

10. Rape (including abduction). 

11. Theft. 

There were a few other true criminal offences beside the 
felonies, punished by discretionary fines, which had taken 
the place of the old pre-appointed wites, paid to the king, 
as head of the state. Sometimes terms of imprisonment 
were added, but these were very often intended simply to 
secure the payment of the money fine. Misconduct of royal 
officials, tampering with some royal prerogative, infringing, 
even slightly, any royal right, and riot, were acts thus pun- 
ished. Notice how hard these penalties must have borne 

1 Under which head are included : de falsis chartis, de falsis mensuris, de falsis 
moneta. 

2 Stephen, ii, 201-2 and 219. 



England under Normans and Planta genets 1 6 



upon the wilful and turbulent Norman nobility, whom the 
king and people had united to suppress, or curb, by social 
punishment. Maintenance — armed anarchy, interfering 
with the due course of justice — was just beginning to be 
noticed in the reign of Edward I. Later, this offence 
became very important, and it was not finally suppressed 
until Tudor times. 1 The writ of trespass (for forcible en- 
try) was in the time of Henry III. and Edward I. taking 
a foremost place in the scheme of actions. The Northum- 
berland assize rolls contain many tales of deliberate rapine 
and pillage, by armed bands. These were largely " wrongs 
done by gentlemen, who at the head of their retainers rav- 
aged the manors of their neighbors." 2 But such acts were 
not crimes. They were harms to an individual, punished, 
when possible, by heavy damages. The state did not take 
the initiative, nor prosecute on its own account. In the 
thirteenth century, " protection against fraud was yet in its 
infancy.''^ All the minor forms of force and fraud were but 
little noticed — regarded merely as torts — compensated some- 
times by damages, assessed by a tribunal, instead of by the 
old pre-appointed bet. And ancient law had practically no 
punishment for those who tried to do harm but did not suc- 
ceed in doing it. 4 All immoral conduct came within the 
jurisdiction of the ecclesiastical courts, of which more anon. 
Such great changes in English criminal and penal law 
certainly amount to a revolution; but, like most great revo- 
lutions, it had been prepared for gradually. Many causes 
— social and economic — had been long at work; but among 
them we may single out one which seems almost sufficient 
in itself to account for the utter breakdown and disappear- 
ance of the old penal customs. The introduction of the 
Norman monetary system had doubled or trebled the 

1 Stephen, iii, 234 and 238. 2 Maitland and Pollock, ii, 525. 

4 Ibid., ii, 507. 



1 64 Royal Choice of Penalties 

amount of the Anglo-Saxon fines — the bot and wer and 
wite. The wer of the poor ceorl, or villanus, had become 
£4; that of the theign £2$ ; * and money was worth many- 
times then what it is now. Few men could pay the large 
sums demanded in composition for their offences, and there 
were two alternatives — either to " flee for it," and become 
an outlaw, or to be sold as a slave. 2 The outlaw forfeits 
everything; life and limb and all that he possesses. He 
becomes a criminal, even though his original offence 
was only a tort, for he has refused to abide by the law of 
the land, and is now a public enemy. In this way very 
many men were made criminals, and fell into the king's 
hands. He could choose their punishment, whether death 
or mutilation, branding as bad and dangerous men, or it 
might be exile or loss of goods. No new legislation was 
necessary. The Norman kings were not fast bound by an- 
cient custom in this respect. William I. preferred mutila- 
tion to the death penalty. His son, Henry I., hanged 
thieves taken in the act, 3 and from other offenders would 
sometimes accept and sometimes refuse a money composi- 
tion. 4 Henry II. " hanged homicides and exiled traitors," 
and in his reign the loss of hand or foot was common. 
Very gradually during the thirteenth century, hanging came 
to be regarded as the fitting penalty for all felons. It is 
most probable that the royal judges had large discretionary 
power in such matters. Certainly, there was no direct legis- 
lation causing the change. But " a man who had forfeited 
everything for his crime could not complain if a foot was 
taken instead of an eye, or he was hanged instead of being 
beheaded.' 5 

1 Leg. Hen., 70, § I, 76, § 4; Leg. William I., c. 8. 

3 Maitland and Pollock, ii. 458. » Flor. Wig., ii, 57. 

4 Wm. Malmesbury, Gesta Regum, ii, 641. 
6 Maitland and Pollock, ii, 460. 



England under Normans and Plantagenets 165 

What effect had all these changes upon the amount of 
crime in England? For Norman days, we have, of course, 
no criminal statistics and but fragmentary historic records. 
Therefore it is impossible to prove the increase or decrease 
of crime by figures. We must seek the natural or inevita- 
ble results of new laws and changed conditions, enforcing 
such arguments, whenever possible, by historic evidence. 
In this search we should bear in mind two facts, revealed by 
a careful study of modern criminal statistics and of history 
in every age, namely: 1. That increased social disapproba- 
tion and repression of some form of conduct constantly re- 
sults in the changing of torts into crimes, or in the creation 
of a crime from some action hitherto unpunished; 2. The 
enforcement of a new social prohibition, or of some old law 
hitherto unused, always means an addition to the nation's 
crime and criminals. Laws which seem to many as unjust 
encroachments upon old liberties will naturally provoke many 
offences among a sturdy and liberty-loving people, innately 
rebellious at restraint. 

Main lines of social progress during the Norman age took 
the direction of greatly increased royal power and the unifi- 
cation of a more equal, more progressive system of law, en- 
forced over all the land by the might of king and people. 
Readers of the earlier pages of this chapter may have been 
able to trace the way in which this social progress was pro- 
moted and maintained by the transfer of many actions, hith- 
erto unpunished, or punished only as torts, into the category 
of true crimes ; but, as the evidence is fragmentary and 
largely indirect, it will be well to state it more clearly. 
Norman kings were very stern in putting down the turbulent 
feudal nobility, and the people very zealously supported 
them in this most necessary work for social welfare. This 
means that the laws decreeing criminal punishment for any 
infringement of, or tampering with, some royal prerogative or 



1 66 The Mirrour of Justices 

right, for rebellion, robbery, riot, and possibly for mainte- 
nance (in Edward I.'s reign), were probably enforced, as 
they could not have been in Anglo-Saxon times, and as we 
know they were not during the later era of the new feudal- 
ism. The enforcement of these laws must have made many 
criminals among the nobles and their warlike followers, 
whose long resistance ended in their almost complete de- 
struction, although wars against them were few. As Free- 
man writes : Henry I. " at least taught the highest and proud- 
est of his nobles that there was a power in the land higher 
than their own. Where he reigned, rebellion and private 
war were not rights to be boasted of, but crimes against the 
law, which the law knew how to punish." * This severity 
was certainly not lessened under Henry II., and in earlier 
years William I. and William Rufus curbed their noble feud- 
atories with a strong hand. 

Treason, in Norman times, was a very elastic crime with 
vague limits, capable of indefinite expansion in developing 
the power of the king. The Mirrour of Justices (page 21), 
in the thirteenth century, shows this plainly. Beside the 
primitive treasons, aiding the nation's enemies, 2 betrayal of 
the person of the king, the army or the realm, 3 flight from 
battle 4 and a few coinage and forgery offences, 5 the crime of 
treason (" majestas ") now included: Plotting or imagining 
the king's death, disinheriting the king of his realm, ravishing 
the queen, the king's eldest daughter, " or nurse, or king's 
aunt heir to the king," and also, adds the unknown author 
of this book : " The crime of majestas, or offence against 
the king, is neighbour to many other offences ; for all those 
who commit perjury, whereby one belies one's faith to the 
king, fall into this offence." A large number of other treason- 

1 Freeman, v, 164 and note. 2 Tacitus, Germania, c. 12. 

* Glanvill, i, 2; Bracton, f. 118b. 4 Cnut, ii, 77; Leges. Henr., 13, § 12. 

6 Aethelst., ii, 14; Cnut, ii, 8. 



England under Normans and Plantagenets 1 67 

able crimes are also specified, all relating to dishonesty or 
misconduct of public officials, or assumption by them of too 
great power. 1 The law of Englishry must have made pun- 
ishment for secret murder much more frequent and more 
certain. The knives then worn by all Englishmen were 
prone to stab on very slight provocation, and the killing of 
a Frenchman after the Conquest must have been an honor- 
able and praiseworthy act at first among the conquered 
English. But the heavy fines, rigorously collected from each 
community failing to arrest and deliver over the man-slayer 
to justice, were probably quite sufficient to change social ap- 
probation or sufferance of such conduct into social disappro- 
bation and criminal prosecution. Secret killing, therefore, 
was probably a crime in Norman days, and from the temper 
of the English there must have been many criminals. The 
Year Books for the Plantagenet period support this be- 
lief, for a large proportion of the cases mentioned relate to 
prosecutions for homicide ; 2 showing also the great prevalence 
of homicide as compared to other offences in Norman times 
and to the same offence in modern England. The nation 
has been very successful in its long struggle to crush out 
this form of crime. 3 William the Conqueror punished very 

1 The Mirr our of Justices, pp. 16-19. 

Treason — In A'orman Times. — Piracy by one of the king's subjects on an- 
other was held to be treason. Stephen, ii, 246. By 21 Edward III. (1348) "an 
appeal of treason lay for killing of malice prepense a person sent in aid of the 
king in his wars with certain men at arms." See case of Sir John Gerberge. 
Hale, i, 80-1. " In the following yeai John at Hill was attainted of high treason 
for the death of Adam de Walton : ' nuntii domini regis missi in mandatum ejus 
exequendum.' " 

2 Year Books, and Stephen, hi, 34. 

3 Murder. — The original murdrum was a very heavy fine, 46 marks : 40 to the 
king, 6 to the kinsfolk: exacted from the hundred where the man (supposed to 
be a foreigner), was slain. In some cases the fine was exacted even for an acci- 
dental death. Bracton regarded this as an abuse. Surely we cannot accuse all 
the hundred men as being criminals. The murder fine was abolished in 1340. 
See 14 Edw. III., Stat. 1, c. 4. Also Maitland and Pollock, ii. 



1 68 Extension of Criminal Law 

severely the ravishing of women, probably a very common 
offence in a land filled with foreign soldiery. 1 There is very 
little case law on record, but after the Conquest rape was 
probably botless if the woman pressed her suit, 2 and the 
second Statute of Westminster (1285) made death the pen- 
alty for all cases of this offence, even though the woman did 
not wish to sue. This is a good example of the change 
from tort to crime. 3 It is said that William Rufus would 
permit none to break the laws but himself, and we know that 
Henry I. sternly inflicted the death penalty upon robbers 
and thieves taken in the act.. As the Old Chronicle tells us : 
"In his reign Ralph Bassett did a fine day's work in Leices- 
tershire, for he hanged forty-four thieves, an exploit without 
a precedent." 4 Freeman believes that King Henry I. suc- 
ceeded in " bringing all men, of whatever race and whatever 
rank, within the grasp of the royal authority," and that this 
"common subjection of Normans and English to the kingly 
power, when the kingly power alone represented law and 
right, did more than anything else to bind Normans and 
English into one nation." 5 The work was accomplished 
mainly by the extension and enforcement of criminal law, 
and the increase of the nation's criminals. It was all made 
possible by the support the people — the body of the nation 
— gave the king. Was not the process a most necessary, a 
most educational one? Does not civilization advance by 
converting tort into crime? 

In the utter anarchy of Stephen's reign crime practically 
ceased, for society was either powerless to punish, or de- 
sired for the time nothing better than unlimited license. 

1 By castration and blinding. See Anglo-Saxon Chronicle (Anno 1087) ; also 
Maitland and Pollock, ii, 489. 

2 Leg. William I., c. 18; Henry, 13, § 6. 

s Stat. West, ii, c. 34; Britton, i, 55; Coke, Third Institute, pp. 180, 433. 
4 A. S. Chron. (Anno 1124), p. 376. 
4 Freeman, v, 166. 



England under Normans and Plantagenets 1 69 

But in the reign of Henry II. the robber barons again be- 
came criminals, for social justice was enforced against them. 
The aid of the people made the triumph of law and order 
permanent. The increase in the reserved pleas of the 
crown, coupled with great improvements in legal procedure, 
rapidly changed tort into crime, rapidly multiplied criminals. 
From this time society was called " upon a very large scale 
and as a matter of ordinary practice" to indict its criminal 
members, and we learn that more and more offences were 
included in this charge. The initiation of a penal action 
was no longer left to the individual harmed or to his next of 
kin. If the sufferer dared not or did not wish to prosecute, 
society would bring the action for him. "From this time 
onward a statement made upon oath by a set of jurors rep- 
resenting a hundred, to the effect that such an one is sus- 
pected of such a crime, is sufficient to put a man upon his 
trial." r Society accepted and supported this system of 
criminal procedure and held itself responsible to the king 
for the prosecution of its criminal members. This was very 
important in creating true criminal offences. Society, and 
not the individual harmed, became the prosecutor, and so- 
ciety inflicted the punishment for the sake of the general 
welfare. People were being trained to think of the accusa- 
tion, prosecution and punishment of offenders as of great 
social importance — to consider the wrong done to society 
rather than the harm to the individual. The introduction of 
this indictment procedure must have led to a large increase 
in the number of prosecutions. It made punishment much 
more sure. It changed tort into crime. It must have 
greatly increased the amount of crime and the number of 
criminals. Those indicted were at once sent to the ordeal 
— " the judgment of God." But we find an increasing skep- 
ticism with regard to this form of trial, and note that those 

1 Traill, i, 291. 



i 70 Forest Legislatio?i 

who passed the ordeal were nevertheless banished from the 
kingdom as dangerous suspects, forbidden to return on pain 
of death. Practically all who went to the ordeal, therefore, 
were punished as criminals. 1 Henry II. included larceny 
among the crimes named at the inquest, and this was the last 
of the early great offences to become a plea of the crown, 
under cover of a phrase charging the thief with breaking the 
king's peace. By the 13th century ordinary wilful homicide 
had become legally a crime, punishable with death, and the 
limits of justifiable manslaughter were then so narrow 
that a child of four years hardly escaped death for the acci- 
dental killing of another, aged two. 2 Death by a passionate 
blow was frightfully prevalent in those days, and society was 
slowly wakening to the idea that this was socially dangerous, 
and should be punished as serious crime. Probably the na- 
tion was not yet sufficiently convinced of this to enforce the 
penalty frequently and so make the action truly criminal, but 
pressure was certainly being exerted in this direction by the 
most intelligent portion of the community. 

The forest legislation of the Normans has not yet been men- 
tioned, for it is somewhat doubtful whether violators of 
these laws should be classed among the criminals, or merely 
as offenders against the king as an individual. Forest laws 
were no new thing in England, but in Anglo-Saxon days 
every man could kill wild beasts upon his own land. - Wil- 
liam the Conqueror made hunting a royal monopoly, the 
exclusive privilege or business of the king and a few special 
friends. Forest laws were very cruel and very strictly 
enforced. Wealthy Englishmen seem, at first, to have been 

1 Form of the inquest in criminal cases : " Do you suspect any of murder, rob- 
bery, larceny, or the like?" "This question was addressed by royal officers to 
selected representatives of every neighbourhood, and answered upon oath." 
Traill, i, 291. 

1 Northumberland Assize Rolls, p. 323. 



England tinder Normans and Plantagenets 1 7 1 

special sufferers. Doubtless the chase was one of their great- 
est pleasures, which they were loth to relinquish. In the 
reign of William Rufus fifty such men at one time went to the 
ordeal to prove their innocence. 1 William of Malmesbury 
declares that the forest tribunals punished with equal severity 
rich and poor, Normans and Englishmen. 2 Henry I. is 
praised by the chronicler for keeping the hunting throughout 
his entire kingdom under his own hand. 3 " Peace he made for 
man and deer," and he saved England from "the curse of a 
little Nimrod in every manor." Probably there was much 
good in this. At any rate the forest legislation of Henry II., 
that great and wise sovereign, was but little less severe than 
that enforced by his grandfather. But all through Norman 
times outlaws received much public sympathy, because of 
the brutal harshness of these forest laws, which, breaking up 
as they did the favorite sport of a sturdy and obstinate peo- 
ple, must have caused many offenders among both Normans 
and Englishmen. Can we rightly call these men criminals ? 
Crime is any act punished by society as a wrong against itself. 
The forest laws and tribunals " avowedly stood outside of the 
common law of the land — existed only for the king's per- 
sonal pleasure," and were ruled only by his personal will. 4 
Yet the people, in general, supported their Norman kings, 
and with good reason, for one tyrant was far better than 
many. It was better to groan occasionally under royal 
punishment for forest violations than to suffer the anarchy 
which must surely come if the wilful nobility and gentry 
were left unchecked to their own devices. Forest laws fell 
"far more heavily on the great men than on the bulk of the 
people," 5 and as a means for extending the king's power, 

1 Eadmer, Hist. Nov., p. 48; Freeman, v, 124. 2 Wm. of M., ii, 501. 

3 Henry of Huntingdon (221 b.), after H.'s death; and William of Newburgh, 
i, 21. 
* Freeman, v, 455. ■ Ibid., v, 164; Henry of Huntingdon, 221 b. 



172 Increase of Crime 

unifying law, and curbing the haughty baronage, forest 
tribunals must have been very effective and socially bene- 
ficial. This would explain their persistent use under Henry 
II., whose whole reign was devoted to the extension and 
enforcement of more equal justice. For these reasons it 
seems right to count offenders against forest laws among the 
nation's criminals, and surely their number must have been 
at times very great. 1 

The evidence seems to warrant the belief that there was 
much more crime in Norman than in Anglo-Saxon England ; 
that the amount of crime greatly increased under strong, 
able kings, when the nation was prosperous and advancing, 
and very greatly decreased under weak sovereigns, when 
society was sick almost unto death. The increase of crime 
was due, in large measure, to the amount of outlawry occa- 
sioned by heavier money penalties ; to improvement in legal 
procedure, turning torts into crimes ; to the enforcement of 
true social punishment for actions hitherto practically unpun- 
ished, or punished only as harms to an individual. New 
crime largely took the direction of acts antagonistic to the 
growth of royal power, or to the unification and extension of 
royal justice over all the land — the two main lines along 
which national welfare then demanded upward progress. 

Although history surely proves the wise enlargement and 
much more sure enforcement of criminal law in Norman 
England, as compared with the centuries before the Con- 
quest, yet this only throws into darker relief the weakness of 
social justice and the consequent small amount of crime in 
that earlier period. Even under Norman kings the crim- 
inal law was exceedingly inefficient. Murder, highway 
robbery and other crimes of violence were of common 
occurrence, and, "whatever the law might wish, the male- 
Benedict, i, 92, 94; Stubba' Preface to Benedict, ii, lxxxiii; Select Charters, 
p. 149; Freeman, v, 682. 



England under Normans and Plantagenets i 73 

factor's fate was like to be outlawry rather than any more 
modern punishment;" 1 while the records reveal an alarming 
number of evil-doers who escaped all punishment for their 
misdeeds. Upon the presentment rolls of the jurors we find 
continually the same sad story : Malefactors came by night 
to the man's house and slew him and all his family, and 
robbed his goods. "We do not know who they were; we 
suspect no one." 2 Life in Norman days must have been 
lamentably insecure, despite the boasts of the chroniclers. 
Murderers, thieves and robbers were rarely hanged, and the 
"hue and cry" after them was an utterly insufficient social 
protection. Men who had tracked cattle thieves to the 
county boundary generally turned home again, saying, "Let 
Gloucestershire folk mind Gloucestershire rogues." The 
justices in Eyre, who visited this county in 1221, after a long 
time in which criminal law had lain dormant during civil 
war, were told of three hundred and thirty acts of homicide, 
beside other offences. The best they could do in support of 
law and order was to hang some fourteen men, mutilate one 
and issue one hundred sentences of outlawry. But this 
again adds weight to the belief that wrong ceases to be 
crime when society is disorganized and at war within itself. 
In more peaceful times the proportion of criminals punished 
was much greater, although their punishment was still mainly 
outlawry. Thus, in 1256 the Northumberland justices heard 
of seventy-seven murders, for which four men were hanged 
and seventy-two outlawed, and seventy- eight other felonies, 
for which they hanged fourteen people and outlawed fifty- 
four. Reports from the same county, in 1279, revealed 
sixty-eight murder cases, for which two men were hanged 
and sixty-five outlawed, and one hundred and ten other 

1 Maitland and Pollock, ii, 555. 'Traill, i, 295. 



i 74 Gentleme?i Raiders 

felonies for which twenty suffered death and seventy-five 
were declared " lawless," having " fled for it." 1 

We must remember that in the thirteenth century, mere 
wilful homicide was just beginning to be made a crime ; that 
the people generally were very much addicted to knifing and 
other passionate blows, which were considered too highly 
natural to be really criminal, even until the nineteenth cen- 
tury ; that robberies were very often the work of gentlemen 
raiders, and, in this form, not yet thought to be dishonorable 
acts.* In ancient law robbery is open, theft secret. Bracton 
(f. 150 b) has to argue that the robber is really a thief, so 
much more detested was the covert than the open injury. 
In the same way, morth-slaying (homicide by stealth) was 
made a crime centuries before passionate manslaughter 
ceased to be the natural and honorable way of settling dif- 
ferences. This feeling has come down to our own day in 
the practice of duelling and fist- fighting, and it is only re- 
cently (since 1803) that desperate, unsuccessful attempts at 
homicide, with cuts and blows, have become really criminal; 3 
Doubtless the enforcement of justice was much more difficult 
in wild Northumberland and other northern and western 
counties of England, than in the more thickly settled and 
civilized farming regions of the south and east. Probably 
outlaws were very generally driven into the west and north, 
and their escape from any other form of social punishment 

1 Northumberland Assize Rolls. 

% See Case of Sir John Gerberge, Hale, i, 81. 

3 Larceny. — " In the thirteenth century manifest grand larceny was a capital 
crime, and all grand larceny was becoming capital. But it is most probable that 
throughout the Norman period only the thief, both manifest and great, was 
absolutely beyond all hope of emendation." See Maitland and Pollock, ii, 496. 

" Folks are saying that the limit of twelve pence allows a man to steal enough 
to keep himself from starvation for eight days without being guilty of a capital 
crime. They are also boasting rightly or wrongly that the law of England is 
milder than that of France." See Cambridge Gloss on Britton, i, 56. 



England under Normans and Plantagenets 175 

was rendered easy by the church right of sanctuary, which 
was fast becoming a public nuisance. 1 

Benefit of clergy saved another set of reprobates from the 
punishment they richly merited, but as yet this privilege 
shielded only clerks ordained into the holy orders of the 
Church. William the Conqueror had separated the courts 
spiritual from the courts temporal ; in this way securing a 
free field for development of criminal law and royal justice 
among the laity. This was wise and statesmanlike, but it 
led almost immediately to the exemption of churchmen from 
all temporal jurisdiction, which became one of the most cry- 
ing evils of the later Middle Ages. The Church courts held 
by compurgation, so that half a dozen or a dozen friends 
could swear a man free from all punishment for his misdeeds. 
The Church might draw no drop of blood, but it could sen- 
tence to life imprisonment, stripes, degradation, penance, 
etc. In practice these last two penalties were, with few ex- 
ceptions, the only ones inflicted, even for the basest deeds 
of murder and adultery. " One clerk ruined the honor of a 
family and tried to murder its head. Another put poison 
in the sacramental cup." 2 The only punishment was two 
years' deprivation from office. Henry II. struggled hard to 
curb this dangerous benefit of clergy, but the people sided 
with the Church, and after the murder of Becket, the royal 
" Customs " were entirely abandoned, and churchmen and the 
offenders against them were left to the mild reproofs of their 
priestly judges. Sins of heresy and sorcery, incest and big- 
amy, fornication and adultery, came entirely within the cog- 
nizance of these ecclesiastical courts, which were very gen- 
erally regarded by the people as the shield of the widow and 
the orphan, and in general, of the most unprotected portion 
of the community, from the hideous punishments of mutila- 
tion common in that age. No doubt this mild jurisdiction 

1 Traill, ii, 297. ' Ibid., i, 260. 



1 76 Eqiiality Under the Law 

was useful in preserving many of the better educated men 
when any education was rare. Thus it placed a premium 
upon the acquisition of some little knowledge, and it was 
useful also as a protest against those inhuman punishments 
for crime. But the abuses of the system (practically pre- 
serving churchmen of every grade and all men who could 
read from the possibility of becoming criminals) became so 
markedly dangerous in later years, that in the time of 
Edward I. — " the age of triumphant Catholicism passing into 
decline " — it became possible, at last, to introduce the most 
necessary reforms, and begin to make the guilty clerk suffer 
as a criminal for his evil deeds. 

Thus, true criminal law was extended and enforced by the 
king and people over the feudal baronage and the Christian 
Church, and by all orders of the people over their despotic 
kings. We shall see this great work of making all men 
equal under the law continued throughout the centuries, pro- 
gressing, as it always will progress, so long as England is 
advancing into greater knowledge, wiser intelligence and 
truer social morality ; but this work, this progress, means an 
ever larger number of social prohibitions, and, so far as his- 
tory teaches, an ever greater volume of the nation's crime 
and criminals. 



CHAPTER VIII 

PARLIAMENTARY GOVERNMENT AND THE NEW FEUDALISM. 

1 307-1485 

The fourteenth and fifteenth centuries of English history 
present the rise, trial and failure of a great constitutional ex- 
periment — the rise of Parliament to sovereign power and the 
attempt to make it the direct instrument of government. 
Upon the rights and precedents then established was erected 
the firm system of constitutional government and national 
liberty won and secured during the seventeenth, eighteenth 
and nineteenth centuries. The rise of the House of Com- 
mons to the foremost rank in Parliament, the control of the 
executive by the legislative, and most of the minor develop- 
ments of Lancastrian and Yorkist reigns were in line with 
the true upward growth of the national life, as later history 
abundantly proves. Why then did this first experiment in 
government by representatives of the people prove such a 
complete failure at the time, even though the failure was 
fruitful of future good? 

1. " The nation had not yet learned the qualities needed 
for such a high stage of self-government." 

A few of the new social prohibitions which the House of 
Commons tried to establish will perhaps suffice to make this 
manifest. Villains shall not send their sons to school. No 
one under the degree of freeholder shall keep a dog. Labor- 
ers must accept the low wages fixed by Parliament and must 
not leave their place of residence to seek employment else- 
where. 

(i77. 



1 78 The House of Commons 

2. There were inherent defects in the representative sys- 
tem of that time. 

The changes which fostered the growing power of the 
House of Commons, and induced it, nay, almost compelled 
it, to take a commanding position in the government, were 
many and important, actually throwing out of gear the 
old political machinery. Ever since Magna Charta, the 
baronage, clergy and people had united to curb and limit 
the too despotic power of the king. The barons of the thir- 
teenth century had outlined the system by which the king 
was to be controlled ; and the genius of Edward I., accepting 
the growth of the constitutional idea, had created the model 
Parliament from the three estates of his realm, harmonized 
the wishes of a mighty king with those of a determined peo- 
ple, and established a balance of executive and legislative 
powers by which the king was stronger, as a constitutional 
ruler, than any of his despotic ancestors, for he could rely 
on the support of all his people, now that "that which 
touches all" had become "the concern of all." But it re- 
quired a wise and strong king to maintain this balance of 
power, and after Edward I. England had a succession of boy 
kings, shadow kings, or kings who owed their crowns to 
Parliament ; while the hundred years' war with France and 
the constant royal need of money made the crown more and 
more dependent upon Parliament, and especially the House 
of Commons, which held the purse. Grants of money were 
made dependent upon the redress of grievances by the king, 
and most of the many limitations of despotic royal power 
during this period were thus paid for. 1 The work of limit- 
ing the authority of the crown went rapidly onward. Before 
the close of the fourteenth century two kings of England had 

1 Stubbs, ii, 599-600. All that was won by Parliament in its long struggle 
against royal despotism was won for the Commons, and the decision of many 
great questions passed irrevocably into their hands. 



Parliamentary Government 179 

been dethroned by Parliament, — here is true social punish- 
ment for the head of the state. In the person of Richard II. 
royal power had sunk to its lowest ebb; and, after 1376, it 
became established that not only the great ministers of state, 
but the courtiers of the royal household and even the king's 
mistress, were responsible for their conduct to Parliament 
and the nation, and that no amount of personal service to 
the king could save his haughty and law-scorning followers 
from trial and conviction as criminals before the bar of the 
House of Lords upon impeachment by the Commons. 1 
"Great as were the offences of Edward II., Stapledon the 
treasurer and Baldeck the chancellor were the more immedi- 
ate and direct objects of national indignation. They were 
scarcely less hated than the Dispensers and shared their 
fate." 2 The "Good Parliament" (1376), impeached Lord 
Latimer, Lord Neville, Richard Lyons, Alice Perrers and 
many of the dishonest courtiers of Edward III., and from 
this time Parliament became "the grand jury of the nation, 
the sworn recognitors of national rights and grievances," 
punishing criminal wickedness in high places. 3 The im- 
peachment of Michael de la Pole (1386) and of Sir Simon 
Burley and his companions (138S) was the work of the 
House of Commons, which later impeached Archbishop 
Arundel for his conduct as chancellor. Richard II. insisted 
that the laws were " in his own mouth and breast," and re- 
peatedly broke the statutes of the land. Parliament deposed 
him and gave his crown to another, showing its power by 
changing the succession. This act closed the long struggle 
between constitutional government and the old idea of royal 
prerogative. The nation had asserted and maintained its 
right and might to punish as criminals all who did not obey 
the laws, even the king and his greatest ministers. 

1 Rot. Pari., ii, 323-330 and 355; Stubbs,ii, 593. * Stubbs, ii, 592. 

n Stubbs, ii, 593; Rot. Pari., ii, 323-330, 355; iii, 156-8, 241. 



1 80 Provisors and Praemunire 

During the fourteenth century every department of gov- 
ernment — legislative, executive, judicial — came directly or 
indirectly under the control of Parliament. The great bulk 
of new legislation was initiated by the lower house, as will 
appear from a comparison of the Rolls of Parliament with 
the Statute Book, 1 and the Commons were simply inde- 
fatigable in suggesting remedies for the many dangerous 
abuses prevalent in the courts of justice. 2 In 135 1, 1352 
and 1353 were passed the Statutes of Provisors, of Treason, 
of Praemunire, each of them vindicating national rights as 
against royal prerogatives 

Under the Normans, treason was essentially a crime 
against the king, so heinous that mere death was far too 
light a punishment. Its limits were undefined, and it had 
gradually been stretching out to cover many minor offences. 
Now, at the prayer of the people, " high treason was de- 
fined, and this act remained a bulwark of the subject's liber- 
ties" till the development of constructive treasons under the 
Tudors. One new treason, however, was created : " The 
making war against the king in his realm." 4 It seems most 
strange to us that so great a social evil should not have been 
made a crime until the middle of the fourteenth century ; but 
when feudalism was at its height, making war against the 
king was an acknowledged right of the baronage, under 
certain conditions. 5 

The Statutes of Provisors and Praemunire dealt with the 
relations of England to the papacy. Henceforward there 
were to be no appointments by the pope to English benefices, 
and no appeals to him from the ecclesiastical courts. These 
acts were confirmed and enlarged many times, in 1364, 1377, 
1390, 1393 ; but a system of division of spoils between the 

1 Stubbs, ii, 604. 2 Ibid., ii, 639-40. 

• Provisors, 25 Ed. III., Stat. 4; and Traill, ii, 147. 

4 Statute of Treason, 25 Edw. III., Stat. 5, c. 2. • See Stubbs. 



Parliamentary Government 181 

crown and the papacy had come about, and the repetition of 
the statutes only registers their failure. 

The reign of Richard II. was a " fruitful time for declaring 
and enhancing of treason in Parliament;" x such conduct be- 
coming more and more crime against the state, rather than 
the person of the king. Parliament asserted its right to de- 
cide upon new points of possible treason as they arose. 2 
In 1 381 it was made treason " to begin a riot and rumor" 
against the king and his realm. 3 There were appeals of 
treason in 1387-9 and 1399, for " leading Richard to mis- 
govern the country." 4 In 1397, Richard II. induced Parlia- 
ment to declare it " high treason to attempt the reversal of 
the acts done in that session." 5 The reign of Henry VI. saw 
a few more treasons added to the list — some of them rather 
ridiculous. 6 Lifting of men or cattle out of England by 
Welsh marauders was thus made high treason by (20 Henry 
VI., c 3) 1 44 1. There were constant attainders of treason 
by Parliament during the Wars of the Roses. 7 

Until late in the fourteenth century the Commons felt 
themselves too weak to stand alone. They were but humble 
petitioners. The lords and higher clergy were their national 
leaders, and on them they still relied. But from the reign 
of Edward I., a widespread revolt against clerical influence 
in political and social life begins to show itself. The higher 
clergy were becoming ever more and more worldly and sub- 
servient to king or papacy. The lower were fast losing 
every trace of the last revival of religion. The people ceased 
to acknowledge church leadership in matters political and 
judicial, and tried hard to end the clerical jurisdiction over 
the laity. 8 " The church courts were the Church's worst en- 

1 Hale, i, 263. 2 Stubbs, iii, 536. s 5 Rich. II., Stat. 1, c. 6. 

* Stephen, ii, 251-2. 5 21 Rich. II., c. 20; and Stubbs, iii, 537. 

6 2 Henry VI., c. 21 (1423), 8 Henry VI., c. 6 (1429). 7 Hale, i, 271. 

* For an early evidence of this see the Petition of the Commons (1344): "That 
no motion made by the clergy to the injury of the laity might be granted without 
examination before the King and the Lords." 



1 82 The Church Courts 

emy, and their abuses were among the first marks of the 
attacks of the new learning;" their immorality, their cost, 
their long delays. 1 In the attempt to reform these courts and 
strictly limit their jurisdiction, the " laicizing " movement of 
the age was strongest, but the majority of lords spiritual in 
the Upper House of Parliament, prevented much success. 
Rioting and mob violence against bishops, priors and their 
servants, witness to the changed public sentiment ; as do also 
the great and growing reluctance to pay tithes and the 
marked falling off of religious foundations. 2 The suppression 
of the Templars (1307-8), the increasing dislike of the friars 
and of the " unbridled multitude " of the religious, are signs 
of the coming revolt, not only against the abuses of mediaeval 
religion, but against that religion itself. 3 Yet even in her 
decline the influence of the Church penetrated into every 
corner of society, in politics, education, and care for the 
poor. 

The high nobility had also earned the distrust of the peo- 
ple, when the Lords Ordainors failed to realize the strong 
new trend of the national life, and insisted upon governing 
for the people instead of by the people. This mistake en- 
abled even the weak Edward II. to reassert his authority and 
to define the rights of Parliament as against the hated Ordi- 
nances. But the nobility refused to heed the warning so 
plainly given. They became more and more selfish and 
reactionary, retiring from the great work of upbuilding con- 
stitutional liberty to fashion a new system of feudalism, which 
soon became the great disruptive force of the age, and a 
deadly peril to justice, order, and national well-being. 

The two greatest safeguards of liberty are sure and equal 

1 Traill, ii, 26. 

* See Canterbury riot (May, 1327) against clerical privilege. Ilchester riot, 
1348. The appointment of the first lay chancellor in 1340. 
» Traill, ii, 25. 



Parliamentary Government 1 8 



justice, and some successful form of constitutional govern- 
ment. The first of these safeguards is well-nigh indispens- 
able. The age we are considering was undoubtedly one of 
great constitutional progress, but it was also one of increas- 
ing lawlessness, of intimidation and corruption of courts of 
justice, of the protection of malefactors by the high and 
mighty of the land, both in Church and State. The Church 
of the fourteenth century was hopelessly corrupt. 1 Both 
public and private morality seemed falling to lower and 
lower depths. 2 

The middle and laboring classes were not so ignorant as 
has been generally supposed. Some knowledge of reading 
and writing must have been quite common among them,3 for 
even the villains could send their children to the monastery 
schools. 4 But such knowledge did but increase the number 
of wrong-doers who could escape punishment as criminals 
by securing benefit of clergy and trial in the ecclesiastical 
courts. 5 

It was a time of general disorganization. There was much 
luxury, much misery and little sympathy. "Vice was ram- 
pant and taken for granted. There was no unity of public 
interest, no singleness of political aim, no heroism of self- 
sacrifice. The clergy were neither intelligent enough to 
guide education nor strong enough to repress heresy." 6 
Warwick, " the king-maker," with his army of 30,000 liveried 
hirelings, and other great lords, with their ruffianly followers, 
enriched by foreign wars and grown more wealthy than the 
Crown, overawed king, Parliament and courts of justice, and 
might was fast becoming synonymous with right. "All that 

1 Th. Rogers, p. 165. 2 Stubbs, ii, 654. 

3 Stubbs, iii, 627; Th. Rogers, p. 165. 

* 7 Henry IV, c. 17 (1405-6); Rot. Pari., iii, 602. 

5 25 Edw. III., Stat. 3 (old), Stat. 6 (new); u An Ordinance for the Clergy" 
(1350) ; Stephen i, 461. 

6 Stubbs. ii, 655. 



1 84 Burgesses and Knights of the Shire 

was good and great in mediaeval life was languishing even to 
death," writes Stubbs ; l and when Henry VII ascended the 
throne, in 1485, there were but few signs of returning health. 
It was in such a time that the first great attempt at gov- 
ernment by Parliament, i. e., by representatives of the people 
of England, was made. Despite the growing disorder, in- 
justice and immorality, the middle classes of the fifteenth 
century were prosperous as never before. The nobles were 
busy with their own feuds, and flocks, herds and fields of grain 
were not much disturbed, even during the Wars of the Roses. 
Commerce flourished in the towns. The disorderly elements 
of the age circled round the feudal lords, and while protected 
by them, warred against each other. It was a time of the 
strong yeoman and his stalwart sons, the thrifty burgess and 
his trusty apprentices, and it was the representatives of such 
men — burgesses from the towns uniting with knights of the 
shire — who now took the lead in Parliament, and attempted 
to press back the advancing flood of anarchy. The troubles 
and weaknesses of the age forced a rapid development of 
constitutional government, but put a fiercer strain upon par- 
liamentary institutions than they were then able to bear. 
The Commons of England had grown strong, but had not yet 
learned how to use their strength wisely. They were still 
the slaves of the blindest prejudice. The shire-moot, the 
basis of the representative system, was falling into decay, and 
the Lords were able frequently to return their own servants 
to Parliament. There was absolutely no assurance that the 
statutes passed by one Parliament would be enforced by the 
next, an evil which cabinet government has since remedied. 
Consequently, the House of Commons seems always seeking 
a champion among the great lords, who believed their 
power, wealth and even personal safety dependent upon the 
maintenance of the bands of ruffians who disgraced them, 

1 Stubbs, iii, 632. 



Parliamentary Government 185 

and whom Parliament and the people were trying to punish 
as criminals. 

" The livery of a great lord," writes Stubbs, '• was as effec- 
tive security to a malefactor as was the benefit of clergy to the 
criminous clerk." * The supporters of maintenance and 
livery were too powerful for the government. 2 Through the 
long list of statutes enacted against them, we can see these 
practices growing stronger and stronger, 3 and the evil was 
by no means confined to the great lords alone. How im- 
portant an element of disruption lay in this custom of livery 
and maintenance during the latter Middle Ages may be 
judged from a statute of Richard II. aimed, however, only 
against small offenders, that declares: "Divers people of 
small revenue of land, rent, or other possessions, do make 
great retinue of people, in many parts of the realm, giving 
them hats and other liveries .... taking of them the value 
of the same livery, or percase, the double value, by such 
covenant and assurance that every of them shall maintain 
other in all quarrels, be they reasonable or unreasonable, to 
the great mischief and oppression of the people." 4 

Unfortunately the nation did not succeed in punishing as 
criminals the liveried hirelings of the great lords, and it per- 
mitted the extension of benefit of clergy to many evil-doers 
far outside the pale of holy orders. Consequently we cannot 

1 Stubbs, Hi, 552. 

2 Rot. Pari., ii, 10, 62, 166, 201, 228, 368, for petitions against maintenance. 
*Edw. I., Stat. Westmin., i, cc. 25, 28, 33; 1 Edw. III., Stat. 2, c. 14 (1326); 

4 Edw. III., c. 11 (1330); 20 Edw. III., cc.4, 5, 6 (1346); 1 Ric.IL, c. 4 (1377); 
7 Ric. II., c. 15 (1383). 

Closely connected are statutes of liveries. 1 Ric. II., c. 7 (1377); 16 Ric. II., 
c. 4 (1392) ; 20 Ric. II., c. 1 (1396). This last act also confirmed the Statute of 
Northampton: 2 Edw. III., c. 3 (1328), "which enacted that no one should go 
armed except on certain specified occasions." 

For the great importance of making maintenance and livery criminal offences, 
See Stubbs, iii, 50-2; Stephen, iii, 236-9. 

* 1 Richard II., c. 7 (1377). 



1 86 Maintenance and Livery 

rightly call the man who slew another in his lord's feud a 
criminal, any more than the malefactor who escaped punish- 
ment through the laxity of the ecclesiastical courts. The 
Commons perceived the nation's danger, and tried repeatedly 
to make both maintenance and livery crimes ; to punish the 
anarchic lords as well as their evil dependents. But the law- 
less forces of the age proved themselves too strong for the 
yet unhardened institutions of representative government, 
and it required the strong arm of a despotic king, following 
up the self-destruction of feudalism in the Wars of the Roses, 
to crush out organized anarchy and restore law and order to 
the nation. 

Parliamentary government failed, though supported by the 
body of the nation, because it was not strong enough to 
punish as crimes actions then most destructive of social wel- 
fare. It failed to maintain order and to enforce equal justice. 
The forces of armed anarchy, of reactionary class privilege, 
and of injustice prevailed. How hard the House of Com- 
mons strove to safeguard the upward progress of the nation 
to constitutional liberty by the creation of new crimes and 
the reformation of the courts of law, will be seen from even a 
casual examination of the legislation attempted. 

But not only did Parliament prove itself too weak to 
punish acts rightly criminal at this stage of the nation's de- 
velopment. It was guilty also of attempting to stamp out 
as crimes new modes of life which the social welfare de- 
manded. Statute after statute was passed to drive back the 
working classes into that condition of serfdom from which 
they were but just emerging. Every effort to establish a 
competitive system of wages was declared criminal, 1 and 
these statutes were re-enacted many times. 2 " Attempts 

1 See Statutes of Laborers, (23E0IW. III.) and (25 Edw. III., Stat. 2), 1349-50 
fixing rates of wages and tying laborers to their existing place of residence. 

2 12 Ric.IL, cc. 3-10, (1388), etc. 



Parliamentary Government 187 

to evade or neutralize " such laws were also made highly 
penal. 1 

It seems hardly fair to charge the landowners and middle 
classes, who were then supreme in Parliament, with inten- 
tional self-seeking in this matter ; for they tried repeatedly 
to fix the price of provisions and other goods (as well as 
laborers' wages), thus preventing a rise in value of produce 
which would have been most advantageous to themselves. 2 
It was the new competitive system which they dreaded and 
deemed highly dangerous ; but their attempts to dam it 
back by penal statutes were as futile as an attempt to dam 
back the sea. Repressive measures only added wide-spread 
social discontent to the other misfortunes of the country. 
Parliament could not see that its laws were foredoomed to 
failure. More and more severe penalties were decreed — 
outlawry, branding, imprisonment instead of fine for even 
smallest infractions of the statutes. "To enforce these laws 
universally was of course impossible, but in many instances 
the landlords did not flinch from the attempt," and Parlia- 
ment kept encouraging them constantly and adding new 
penalties. 3 

Doubtless, it was from ignorance that Parliament tried to 
make competitive prices criminal, as it was from weakness 
that it failed to punish maintenance, livery, organized ruffian- 
ism and legal injustice as crimes. But for both these 
reasons parliamentary government well merited its over- 
throw. It had fallen upon evil days, and while good in 

1 See 3 Hen. VI., c. I, (1425), in which confederacies of masons were forbidden 
to meet in their general chapters under ban of felony for the officers who called 
them together, and imprisonment, fire and ransom for others. 

2 See laws regulating prices, keeping them down after the Black Death. They 
were laws of tort, an overcharge being punished by double the price received to 
the party " damnified." See Ordinance of June 18, 1349 (23 Edw. III., c. 6), and 
Statute of Laborers, 1351. 

■ Traill, ii, 146. 



1 88 Decreasing Crime 

itself and destined to rule the future, it was not strong and 
wise enough in its callow youth to meet the needs of the 
times. A long period of royal despotism was necessary be- 
fore it could grow to manhood ; but that despotism was the 
choice of the people, was supported by them, and the people 
prospered under it ; while all through the period of Tudor 
sovereignty there was abundant evidence, in Parliament and 
in the nation at large, that the spirit of constitutional liberty 
was not dead, but only sleeping. 

If the theory of this book is correct, we should find in this 
age of social disorganization, injustice, immorality and grow- 
ing anarchy, a decrease rather than an increase in the 
amount of crime when compared with centuries immediately 
preceding. The evidence is of course fragmentary, but on 
the whole it seems to warrant this belief. The Year-Books 
from the reign of Edward I. to that of Henry VII. show that 
the written law of crimes varied little from the days of 
Bracton to Tudor times. It consisted still of •' a few 
vague definitions of the greater crimes," while Stephen be- 
lieves "it hardly provided for the minor offences at all, 
except by the vague and arbitrary system of fining .... 
which seems to have been greatly restricted and to have 
fallen much into disuse during this period." r " Statutes 
creating new offences were not very numerous," and related 
chiefly to " crimes of violence, especially crimes directed 
against the public peace and the administration of justice, 
treason, riot, maintenance, livery, forcible entry and extor- 
tion of officers." 2 But these statutes, for the most part, 
rather aimed at the creation of crimes than actually created 
them, for the laws could not be enforced. Justice was de- 
layed and thwarted by royal writ (contrary to the charter) 
and by the solicitations of great lords and ladies " who main- 
tained the causes not only of their own bona fide dependents, 

1 Stephen, ii, 203. 2 Ibid., ii, 203. 



Parliamentary Government 189 

but of all who were rich enough to make it worth their 
while." x 

If the criminal quality of an action depends upon its punish- 
ment by society as a wrong against itself, then actions which 
society customarily leaves unpunished, for whatever cause, 
are not crimes, no matter how bad they may be in them- 
selves, no matter how many laws are enacted to suppress 
them. Only when society both wills to punish and succeeds 
in inflicting punishment upon a considerable proportion of 
offenders, does the evil action become a crime. 2 In the 
fourteenth and fifteenth centuries the laws against mainten- 
ance and livery were not, and could not be, generally en- 
forced, and consequently the lords who broke the laws were 
not criminals any more than would be the supporters of a 
successful revolution ; as for example the American Revolu- 
tion of 1775. For the same reason the ruffians and male- 
factors whom their lords preserved from well-merited social 
punishment cannot rightly be called criminals, and the en- 
larged benefit of clergy must have shielded many more such, 
both in and out of holy orders. 

Outside these acts of private war and legally or forcibly 
protected evil- doing, there was peace in the country at large, 
and in the cities, "judging by our own standard, very little 
crime, . . . very few cases are reported in the city records." 
Hanging was the punishment for murder, burglary, highway 
robbery and gross theft, but in the city of London Rolls and 
Letter Books of the first half of the fourteenth century there 
are practically no heavy offences recorded, save one case of 
highway robbery, for which the man was hanged. 4 Assault 

1 Stubbs, ii, 640. 

2 The amount of social punishment required to make an action criminal cannot 
be expressed by percentages. It must be sufficient to establish a reasonable ex- 
pectation in the minds of the community that offenders will be brought to justice. 

3 Traill, ii, 270. 
* Ibid., ii, 120. 



190 Fourteenth Century London 

cases were somewhat frequent, but " till late in the seven- 
teenth century the most violent crimes against the person 
were treated simply as misdemeanors, punishable with fine 
and imprisonment." r This, to us, extraordinary leniency, 
shows that society for many centuries regarded such acts as 
highly natural and hardly criminal. When punished at all 
they were generally treated as torts, not crimes. In 131 1 the 
Londoners made a clean sweep of common " roarers, roist- 
erers, bruisers, night-walkers against the peace, and users of 
false dice." 2 There were also a considerable number of 
other misdemeanors in fourteenth century London, punished 
usually by confinement in the pillory or stocks. Some of 
these acts are now regarded as most serious crimes ; for ex- 
ample, certain kinds of forgery and child-stealing. The laws 
of that period abound in regulations of the pettiest details of 
business. Light weight bread, bad dough, and many other 
little business frauds were frequently punished, by pillory, 
fines and forfeiture of the goods, a large part of the mulct 
going to the party who brought the suit. Thus the offence 
partook largely of the nature of a tort. 3 

The evils of forestalling and regrating were made the sub- 
ject of very many statutes. Forfeiture and imprisonment 
were decreed against such conduct, but the laws themselves 
"recite" how former statutes " have been found deficient." 4 
From the reign of Richard II. there were acts against unlaw- 
ful games and gaming, with penalties of imprisonment and 

1 Stephen, iii, 109 (for evidence). 

a Riley, Memorials, p. 86. Elmer de Multone and several other " roarers" were 
indicted about this time. 

3 (12 Edw. II., c. 6) for " assize of wine and victuals;" (13 Rich. II., Stat. I, 
c. 8) for assizes of bread and ale; (51 Hen. III., Stat. 6) bakers transgressing 
assize. (11 Edw. III., c. 3), (25 Edw. HI., Stat. 3), and many other statutes 
regulate butter and cheese, clothes, etc. (% mulct to party suing). (7 Hen. IV., 
c. 7) arrow heads; (23 Hen. VIII., c. 4, § 2) beer and beer barrels. 

4 5 and 6 Edw. VI., c. 14. 



Parliamentary Governme?it 191 

increasingly heavy fines, given in part to the person suing. 
Some of these laws were intended to foster the practice of 
archery, deemed necessary for the safety of the nation, but 
how well they were enforced we do not know. 1 Sumptuary 
laws, " against the outrageous and excessive apparel of 
divers people," in all grades of social life are very numerous. 
Offenders were to " forfeit to the king all the apparel they 
have worn against this ordinance," thus presenting to our 
minds a picture of the king of England as dealer in second- 
hand clothes. 2 Later, money penalties were added, but the 
laws could not be enforced, and successive statutes for cen- 
turies relate how " the commons of the realm, men and 
women, have worn and daily do wear, excessive " and inor- 
dinate array. 3 Finally an act of James I. repealed all this 
mass of useless legislation, vainly intended to make the wear- 
ing of expensive clothing criminal. Other misdemeanors 
punished by the Londoners were, pretending to be a physi- 
cian, practicing sorcery, magic or soothsaying, being a pro- 
curess or a common scold, and counterfeiting the licensed 
begging poor. 4 

Beside civil court misdemeanors, there were a multitude 
of more or less common offences regarded as sins and com- 
ing under the jurisdiction of the ecclesiastical courts, whose 
judgments were notoriously mild, though their procedure 
was thoroughly inquisitorial. Among the most important 
are heresy, blasphemy, neglect of church services and eccles- 
iastical ceremonies, contempt of the clergy, and neglect by 
the clergy of clerical duty, 5 perjury, defamation, witchcraft, 

1 (Ric. II., c. 6), (11 Hen. IV., c. 4), (17 Edw. IV., c. 3), and one each under 
Hen. VII., Hen, VIII., Ph. and M., Chas. II. and Anne. 

2 37 Edw. III., c. 8 to c. 14. 

3 3 Edw. IV., c. 5. 

* Riley, Memorials, p. 385. 

5 A very common offence apparently. See Stephen, ii, 404-5. 



192 Perjury not a Crime 

breach of faith, drunkenness, common bad language and 
every form of incontinence. Most of the business transacted 
by these courts was unimportant from the criminal stand- 
point. Out of 1854 cases cited before the ecclesiastical 
courts of the city of London, from 1496 to 1500, "one-half 
were charged with the crime of adultery and others of like 
nature." 1 The punishments were excommunication, pen- 
ance and imprisonment, by writ from the king's chancery. 2 

On the whole the London of that age does not seem to 
have been a very criminal place, if we accept the Londoners' 
own standard of criminality. Of course the population was 
small, not more than 40,000 to 50,000 people ; while the 
total for all England was only about 2,500,000. Some of 
the offences taken cognizance of by the canon and the 
common law in fourteenth century England were very far 
from being crimes. Thus, perjury was practically un- 
punished. Our ancestors could perjure themselves with 
impunity. " It was," writes Hallam, " one of the most 
characteristic vices of the Middle Ages." The only perjury 
punishable by the old common law was that of jurors, who 
were also at that time witnesses ; and for several centuries 
the Year Books contain no reference to this offence. All 
other perjury was regarded as sin, an offence in ecclesiasti- 
cal courts alone. But to be known as " a common swearer 
before the ordinary," by the absurdly antiquated system of 
compurgation still in use in these courts, was quite sufficient 
to brand a man as a common liar. It does not seem just, 
therefore, to call perjury a crime in those days. 3 As to 

1 See Hale. 

2 The coercive jurisdiction of the ecclesiastical courts was recognized and con- 
firmed by the legislature a number of times. For the 14th century, see (9 Edw. 
II.,Stat. 1), 1315; (15Edw.HI., c. 5); (31 Edw. III., c.i 1). 

3 Hobart, " Searl vs. Williams," p. 291, states that the old common law proced- 
ure had made perjurers of " witnesses, compurgators and jurymen," and that " the 
judge himself was not clear." Hobart declares that 18 Eliz., c. 7. utterly abol- 
ished purgation, whereby " sundry perjuries and other abuses were avoided." 



Parliamentary Government 193 

other offences common and severely punished later, we know 
that libel then attracted very little attention, 1 while the most 
violent harms to the person were very little regarded. There 
was a remote possibility of their punishment with fine and 
imprisonment, as misdemeanors, 2 but they were so very 
common and seemed so natural that people probably thought 
of them more as they have, till very recently, thought of 
drunkenness, rather than as serious offences. As for at- 
tempts to commit crime, they were practically unpunished 
until Tudor times.3 

Summary. The fourteenth and fifteenth centuries were a 
period of marked constitutional progress, but of great degra- 
dation and weakness in the administration of justice, of in- 
creasing anarchy and corruption, of moral decay. Parlia- 
ment to some extent succeeded in safeguarding the new 
development of government by the people, by holding the 
king and ministers of state rigidly responsible to the nation 
for their actions, and punishing them as criminals when they 
broke the laws. The representatives of the people fully 
realized the necessity for suppressing organized anarchy and 
making justice sure and equal, but their government was too 
weak to enforce the many statutes aimed at these abuses. 
The laws remained dead letters, and consequently the acts 
they were directed against were not crimes. Parliament at- 
tempted to punish, and to some extent probably succeeded in 
punishing as criminal the rise of the working classes to indi- 
vidual liberty, the introduction of competitive wages and com- 
petitive prices. In so doing it opposed the nation's true devel- 
opment. Thus, for many reasons, parliamentary government 
earned its downfall. But, despite successful anarchy and in- 

1 Coke mentions but two cases after his exhaustive study of the records. 
Stephen, ii, 302. 
s Stephen, iii, 109. 
*In 1340 Englishry was abolished. Sac (14 Edw. III., Stat. 1, c. 4). 



194 Wars of the Roses 

justice, and indeed to a large extent because of it, there was 
little crime in England. The middle classes of the nation 
prospered as never before. Flocks and fields of grain re- 
mained safe, and commerce flourished in the towns ; for the 
feudal nobility were busy with their own feuds, and the law- 
less men of the age were largely attracted to their service, 
by love of license, lust of gain and assurance of protection. 
The failure of parliamentary government to make these men 
criminals, was followed by the self-destruction of feudalism 
in the Wars of the Roses, and the board was swept clean for 
a despotic monarchy, strong enough to enforce law and 
to secure order. 



CHAPTER IX 

TUDOR ENGLAND. 1485-1603 

THE Tudor government of England was not an unlimited 
absolutism, like the governments of France and Spain, dur- 
ing the same century. 1 Rather, it was a needful despotism, 
supported by the people, because necessary for the social 
welfare, but greatly limited by laws against which it was 
constantly charing, and which it was strong enough frequently 
to break through and constantly to bend to its will. 2 Both 
the legislative and the judiciary were painfully subservient 
to the executive under Tudor administrations. Executive 
power was summed up in the king, and a large share of 
legislative and judicial power also. 3 But no law, intended 
to be permanent, was made in sixteenth century England 
without the consent of Parliament, and the courts of law were 
at least free in theory, however much they were controlled 
in fact. 4 

The nation's greatest need was strong law, enforced by a 
despotic king, putting down the civil feuds of the turbulent 
nobility, punishing criminals regardless of the maintenance 
or livery of any lord, reuniting the people and holding them 
firmly together until time had healed the old wounds of civil 
war and private feud. To secure this, the nation was will- 
ing to relinquish, for a time, some measure of its old consti- 
tutional liberties. 5 There are times, writes Montesquieu, 
when the Goddess of Liberty should be veiled ; and this was 

1 Hallam, i, 276. 2 Traill, ii, 459, and iii, 16 and 26. 

3 Judicial power through the Court of Star Chamber. 

* Hallam, i, 278. 5 Traill, ii, 456-7. 

(195) 



196 A Needful Despotism 

one. Parliament became the willing tool of the king, and 
the courts of law were almost equally swayed by his dictation. 
Yet a government that ruled by intimidation had no army at 
its command and was entirely without power to enforce its 
will. 1 The people supported the king, for he made good 
peace in the land and built up the wealth and prosperity of 
the middle classes, the backbone of England. Doubtless it 
was better that Parliament should for a time " register the 
acts of a despot," than that it should fall into the ignominy 
and contempt that had seemed awaiting it. The acts it 
registered were great acts, many of them, and they were all 
done "by the authority of Parliament." In the severe treat- 
ment meted out to the nobles and rich land owners the 
people fully acquiesced. 2 Indeed, the nobles richly merited 
punishment at the nation's hands. Grown rich in foreign 
wars, powerful in Parliament and social life, they should have 
been the natural leaders of the people in their struggle for 
liberty, as they had been for centuries. But they preferred 
to retire from leadership and use their might to terrorize 
king, Parliament and people, and make a mockery of justice 
by maintaining miscreants of every type ; building up a new 
and dangerous feudalism upon a basis of glittering chivalry, 
and plunging the nation into civil war for their own selfish 
purposes. Parliamentary governments of the fourteenth 
and fifteenth centuries had failed in their attempts to punish 
the barons and their lawless dependents as criminals. 3 Both 
Parliament and people recognized this failure and accepted 
the necessity for a despotic monarchy, as alone able to sup- 
press armed and organized anarchy and restore order — the 
greatest need of the age. 4 

A statute of the fourth year of Henry VII. shows the 

1 Hallam, i, 46-7; Traill, ii, 456. * Traill, iii, 30. 

3 (3 Hen. VII., c. 1.) Quoted on page 201. 

4 (3 Hen. VII., c. 2), 1487; (4 Hen. VII, c. 12). 



Tudor England 197 

widespread disuse of laws and extortions of sheriffs preva- 
lent. "The king, our sovereign lord, considereth how daily 
within this realm his coin is traitorously counterfeited ; mur- 
ders, robberies and felonies are grievously committed and 
done; and also unlawful extortions and misdemeanings of 
sheriffs and many other enormities and unlawful demeanings 
daily groweth and increaseth within this his realm, to the 
great displeasure of God, hurt and impoverishing of his sub- 
jects and the subversion of the policy and good governance 
of this his realm." The statute further relates how that suf- 
ficient good laws have been made for repressing these mis- 
chiefs, but that they are not enforced by the justices ; for "if 
his subjects complain to these justices of the peace of any 
wrongs done to them, they have thereby no remedy, but by 
many of them rather hurt than helped and the said mischiefs 
do increase and are not subdued." Therefore punishments 
are decreed against offending justices, etc. Accordingly, the 
people rallied round the crown, and while seeking its protec- 
tion became at the same time its greatest support. Again, 
as in early Norman days, king and people united to put down 
the turbulent feudal nobility. 1 But not only was the old 
nobility humbled, crushed and prostrate under the heel of 
the king; the clergy also shared the fate of the barons 
"with whom they had latterly identified themselves." 2 

For centuries the Church had been losing its hold upon 
the people. The Reformation was prepared for slowly. 
The Lollard movement, the Renaissance, the increasing 
worldliness of churchmen, their greed of wealth and sus- 

1 First it was king, Church and people against the nobles. Next barons, Church 
and people curb the overweening power of the king. Now again it is king 
and people putting down the new feudalism, but they unite to put down the old 
ecclesiastical order as well. See Hallam, i, 64, and Traill, hi, 19, 27. Notice 
that the people were always on the side of true progress, while all the other forees 
were at some time opposed. 

2 Traill, ii, 458; Hallam, i, 81. 



198 The Great Reformation 

pected immorality, above all their dependence upon a for- 
eign authority, all united to develop distrust and dislike in 
the minds of a nation now beginning to think more freely 
and independently upon matters of religion. Spiritual life 
and energy seemed to have left the Church, although her 
material power was never greater in England than at the 
close of the fifteenth century. Her services were never 
more faithfully attended. Her courts never had a wider 
jurisdiction. But more and more people were persuaded 
that fraud and corruption pervaded the established church 
(see Hallam, i, 84), and it was this belief, far more than 
theological reasoning, which prepared the way for the great 
revolution in religious opinions, the separation from the 
communion of Rome ; and made the larger part of the 
nation acquiesce silently in the dissolution of the monaster- 
ies, the confiscation of their estates, the humbling of the 
secular clergy and the limiting of ecclesiastical jurisdiction. 1 
The Church had failed to reform herself from within, and 
must therefore be reformed from without. Not only had 
she fallen from her old position of leadership in the struggle 
for constitutional liberty; she had become a positive drag 
upon the upward progress of the nation ; and in nothing 
was this more apparent than in the ecclesiastical courts, 
where antiquated procedure and priestly jealousy of inter- 
ference had made a mockery of justice, and shielded many 
malefactors from well deserved and socially necessary pun- 
ishment as criminals. 2 The Church courts had made justice 
and punishment most uncertain, even for murder and high- 
way robbery, and this not for priests and bishops alone, but 
for the great multitude of men in minor orders, offenders 
against all clericals, and even for those who could barely 
read or repeat a verse of the Psalms of David. Uncertainty 
of justice is an evil far worse and more insidious than mis- 

1 Hallam, i, 72 and 100; Traill, iii, 27. 2 Hallam, i, 58. 



Tudor England 1 99 

takes and cruelty under the name of law. If the first and 
greatest safeguard of popular liberty — sure and equal justice 
— was to prevail in England, ecclesiastical jurisdiction had 
to be greatly limited. This great work was begun and 
largely carried out under the Tudors. 1 

The nation's greatest need, therefore, during this period 
was internal peace and order — the evident means thereto 
was the enforcement of strong law by a despotic yet popular 
monarch. How the Tudors succeeded, where parliamentary 
government had failed, in punishing as criminals the anarchic 
nobility and their lawless followers, in reforming the Church, 
and making justice more equal and sure by limiting the 
jurisdiction of the Church courts, we shall see in following 
the statutes, proclamations and legal procedure by which 
this most important work was accomplished. We shall find 
punishments growing heavy and sanguinary, and many of the 
powerful in Church and State brought low and punished as 
criminals. Laws of treason are multiplied, and treason 
again takes the direction of offences against the person and 
will of the king. Constructive treasons are developed. 
Many crimes are created by the king's desire, some of them 
opposed to popular liberty. But on the whole the Tudors 
did great good and deserved to be supported by the nation. 
The suppression of the anarchic nobility by the expansion of 

1 There were other reasons why the Church had to be purified and despoiled of 
her wealth. One-fifth of all the landed property of the realm was in the hands of 
the Church, which never lost, and always gained. Methods of farming in use on 
Church estates were hopelessly old-fashioned and unproductive. Lavish and 
unwise charity was filling the land with lazy beggars of church doles. There 
would have been great practical difficulties in the way of the new learning and of 
religious reformation, if the abbots had been permitted to hold their seats in the 
House of Lords, for the lords temporal were outnumbered by the lords spiritual, 
whose tendencies were strongly couservative and reactionary. The sharing of 
monastic spoils raised up a new landed aristocracy and strengthened their hands 
to resist later the despotic monarchy of the Stuarts, a most necessary work for 
English liberty. See Hallam, i, 74, 79, 80. For the people supporting the king 
in the severance from Rome, see Hallam, i, 64. 



200 Court of Star Chamber 

treason laws and the enforcement of old criminal statutes 
against maintenance, livery, etc., was accomplished mainly 
during the reign of Henry VII. through the court of Star 
Chamber. 

The criminal jurisdiction of the Privy Council had existed 
from remote antiquity, and despite the remonstrances of 
Parliament in the fourteenth and fifteenth centuries, and 
three statutes (1350, '54, '68) which seem intended to abol- 
ish it, the Council continued to hold its " sittings in the 
starred chamber," and its powers of jurisdiction were in- 
creased, for it met a felt need of the nation, remedied defects 
and omissions of the common law, supplemented its meagre 
provisions by the gradual creation of new crimes, and was 
strong enough to enforce its authority where the ordinary 
law courts failed. Thus it may be said with truth that both 
the king and his arbitrary court faithfully represented the 
nation, and did its will, in the extension and enforcement of 
the criminal law, and the resulting multiplication of crim- 
inals. 

"The praise of trial by jury as a bulwark of individual 
liberty is a familiar topic. It is less commonly known, but is 
certainly no less true, that the institution opened a wide door 
to tyranny and oppression by men of local influence over 
their poorer neighbors. In feudal times the influence of a 
great landowner over the persons who were returned as jury- 
men to the assizes was practically almost unlimited. . . . 
The offence which was long known to the law as main- 
tenance, or perverting justice by violence, by unlawful as- 
semblies and conspiracies, was the most frequent and most 
characteristic offence of the age. One of its commonest 
forms was the corruption and intimidation of jurors. Signal 
proof of this is supplied by the repeated legislation against 
this offence." r Henry VII. and his Parliament struck directly 

Stephen, i, 17 1-2. 



Tudor England 201 

at this evil — the most dangerous then existing — by a statute 
passed in the third year of Henry's reign (3 Hen. VII., c. i.), 
1487, which describes both the nature of the offence and the 
means to be employed for its correction, and confers large 
authority upon certain members of the court of Star Chamber 
to proceed against all violators of this, or former statutes, and 
to punish them forthwith as criminals. The preamble and 
first section of this statute read : 

" The king our said sovereign lord remembereth how by 
unlawful maintenance, giving of liveries, signs and tokens, 
and retainders by indentures, promises, oaths, writings, or 
otherwise embraceries of his subjects, untrue demeanings of 
sheriffs in making of panels and other untrue returns, by tak- 
ing of money by juries, by great riots and unlawful assem- 
blies, the policy and good rule of this realm is almost sub- 
dued, and for the not punishing of these inconveniences, and 
by reason of the premises, little or nothing may be found by 
inquiry" (#. e.> by inquests or juries) "whereby the laws of 
the land in execution may take little effect, to the increase of 
murders, robberies, perjuries, and unsureties of all men liv- 
ing, and losses of their lands and goods to the great dis- 
pleasure of Almighty God. Therefore it is ordained for 
reformation of the premises by authority of said Parliament, 
that the chancellor and treasurer of England " (etc., naming 
the other members of the court) " upon bill or information 
put to the said chancellor for the king or any other against 
any person for any misbehaviour before rehearsed, have 
authority to call before them by writ or by privy seal the 
said misdoers, and them and other by their discretion, by 
whom the truth may be known, to examine, and such as they 
find therein defective to punish them after their demerits, 
after the form and effect of statutes thereof made, in like 
manner and form as they should and ought to be punished, 
as if they were thereof convict after the due order of the law." 



202 New Forms of Crime 

It is very evident that these special powers conferred upon 
the court of Star Chamber were designed to restore law and 
order and secure the punishment of the turbulent nobility 
and their lawless followers. In later Tudor reigns, the chief 
importance of this court lay in the jurisdiction it developed 
over libels and several other offences, unmentioned in the 
statute of Henry VII., because not then recognized as really 
dangerous to the social welfare, or not as yet believed to be 
even criminal. The Star Chamber, so justly hated and 
abolished later for its tyranny, was undoubtedly of very great 
service to sixteenth century England, in restoring order 
and in supplying socially necessary punishments for "for- 
gery, perjury, attempts and conspiracies to commit crimes, 
and many forms of fraud and force, which the old common 
law left practically unpunished," and which, therefore, re- 
maining unpunished, were not crimes. 1 "This court," writes 
Coke, "doth keep all England in quiet." 2 Bacon describes 
it as " one of the sagest and noblest institutions of this king- 
dom." 3 It impoverished the haughty baronage by heavy 
fines. Thus, the Earl of Rutland was fined £30,000 for his 
share in the Earl of Essex insurrection. The Earl of Ox- 
ford paid a fine of £ 1 5,000 for keeping his retainers in livery ; 
" a practice," writes Hallam, " mischievous and illegal, but too 
customary to have been punished before this reign." 4 The 
expansion and enforcement of treason laws is reported to 
have made treason the most profitable branch of Henry 
VII's revenue. 5 Indeed, the whole history of the adminis- 
tration of justice under Henry VII. is filled with records of 
fines and forfeitures, by which the old nobility were so 
thoroughly intimidated and impoverished, that when Henry 

1 Stephen, i, 177, ii, 229 and 470 ; Hudson, pp. 104-107. 

* Coke, Fourth Institute, p. 65; and Hallam, i, 52. 
g Bacon's Works, v, 54 ; also Rushworth. 

* Henry VII. See Hallam, i, 15. 6 Traill, ii, 463. 



Tudor England 203 

VIII. ascended the throne there was no strength left in 
them. 1 Henry VII. was exceedingly anxious for this result, 
and he destroyed their ancient class privileges as ruthlessly 
as did his son the vested interests and legal rights of the 
clergy. 

While humbling and putting down the upper classes in 
the state, the Tudors were zealous in uplifting the middle 
and lower orders. All through the sixteenth century these 
sovereigns posed as social reformers. 2 They created a new 
nobility from the wealthy rural landowners ; they legislated 
for the benefit of the rising commercial class ; they investi- 
gated the wages question and the relations of labor and 
capital. 3 Their policy transformed England from a poor and 
thinly peopled country into a rich, energetic and powerful 
nation. Under them the middle classes slowly grew into that 
enduring and disciplined strength which successfully asserted 
and maintained rights of individual liberty, equal justice and 
constitutional government against the Stuart kings. But the 
times were not yet ripe for this reassertion of popular sover- 
eignty. Sixteenth century England was in the throes of a 
great new birth — a transformation, wrought out through 
much suffering, which replaced feudalism with commercial- 
ism, and Romanism with individualism. 4 The nation craved 
growing room, and for this kings were needed who both 
could and would cut the old bonds right and left, yet hold 
the social life together till the new order had become cus- 
tomary and its restraints natural. Not till toward the close 
of Elizabeth's reign did Parliament begin to reassert its 
authority. 5 But then the Tudor despotism had done its 
work, and its usefulness was in the past. 

1 Hallam, i, 47. 2 Traill, ii, 462. 

3 See Commercial Treaties with Flanders: " Inter cursus Magnus" (1496), and 
another treaty (1506), favoring the English so greatly that the Netherlanders 
called it the " Malus Intercursus." 

4 Traill, ii, 459. 5 When Elizabeth relinquished the monopolies in 1601. 



204 Terrible Treason Laws 

Meanwhile, the old Statute of Treasons (25 Edw. III.) was 
thought utterly insufficient to protect the person and power 
of the king, during the critical times from the beginning of 
the Reformation (1533), till the end of the century. The 
nation was very busy during all this period, creating new 
crimes — new treasons — safeguarding its new life. Especially 
is this noticeable during the reign of Henry VIII., when 
there were no less than nine acts creating such offences ; and 
history shows how ruthlessly these laws were enforced for 
the suppression and execution of the king's enemies, whom 
the nation, in the main, regarded as its enemies also. Four 
of these acts proclaimed and defended the position of the 
king in his struggle for supremacy with the pope of Rome. 1 
They were terrible laws, making the speaking of treasonable 
words treason ; the obstinate refusal to take the abjuration 
oath against the pope, high treason ; and even concealment 
or flight beyond seas to escape the penalties of royal pro- 
clamations concerning religion, high treason. 2 Stephen be- 
lieves these laws necessary. The Tudors had to strike 
terrible blows against their adversary and his adherents, and 
victory was hard won even then. 3 Without the support of a 
very large body of the people it could never have resulted. 
But "Catholicism, without the pope was," writes Traill, 
"the latent wish of most Englishmen," and this was what 
Henry VIII. practically gave. " He struck the true average, 
and that average backed him" and won his cause. 4 Sac- 
erdotalism as a form of government perished out of England. 
The Reformation was "the social victory of the great lay 
classes over the clerical estate." 5 The question, "Who is to 

1 (26 Hen. VIII., c. 13), 1534; (28 Hen. VIII., c. 10), 1536; (31 Hen. VIII., 
c 8), 1539; (35 Hen. VIII., c. 3), 1543. 

2 Parliament gave to royal proclamations in this reign the same force " for the 
time in them lymitted" (1539), as it gave to its own acts. Benefit of sanctuary 
was taken from all traitors in 1534. 

3 Stephen ii, 258. * Traill, iii, 49. s Ibid., 51. 



Tudor England 205 

rule?" was answered forever. The nation had chosen the 
line of its religious development. Those who refused to 
follow were regarded as enemies of Church and State, and 
were to a large extent punished as criminals. We cannot 
enter here into a discussion of the necessity or usefulness of 
the Reformation. Let it suffice that England has prospered 
since. But as to the fact that the cutting loose from Rome 
led to the enactment of many new criminal laws protecting 
the new religious development, and a rapid increase of 
criminals in the land, there can be no doubt. 1 Bishop Fisher 
and Sir Thomas More were beheaded on a charge of high 
treason for denying the ecclesiastical supremacy of the 
Crown (Act of 1534) ; 2 and a considerable number of ab- 
bots and less distinguished men shared their fate. By the 
attainder of these abbots some of the larger monasteries were 
held forfeited to the king, contrary to all law. 3 In Edward 
VI. 's reign many people were sent to prisorT for hearing mass, 
and other similar offences; 4 but the persecutions fell mainly 
upon high ecclesiastics and noble victims, as later in the 
reign of Mary. 5 Under Elizabeth we learn from a Jesuit 
source, that "persecution in England was 'monstrous great.' 
Five priests have been executed ; four hanged, drawn 
and quartered ; the fifth stoned." 6 Even the most secret 
exercise of the Romish ritual was severely punished. The 
penalty for saying mass was 200 marks ; for hearing it, 100 
marks, together with one year's imprisonment for all con- 
bishop Burnet, History of the Reformation, i, 351, and State Trials, i, 469, 
for many scores of men and women beheaded as traitors for their religious belief. 
- State Trials, i, 385 and 395. 

1 The abbots of Reading and Glastonbury, and others, suffered death upon the 
scaffold. Hallam, i, 72. 

* (2 and 3 Edw. VI., c. 1), 1548; Strype's Cranmer, pp. 333-4, for Papists, and 
p. 335 for Anabaptists (1550). 

6 Strype's Cranmer, pp. 308, 322, 324, 329. 

•Strype's Annals (Elizabeth, 1587 and 1593), and Lingard, viii, 164-183. 



2o6 Criminals for Conscience Sake 

cerned ; and after the Spanish Armada the " execution of 
priests and other Catholics became more and more frequent, 
and fines for recusancy were exacted as rigorously as be- 
fore." x Between 1588 and 1603, 1 10 Romanists, "61 clergy- 
men, 47 laymen and 2 gentlewomen suffered capital punish- 
ment for some or other of the spiritual felonies and treasons 
which had been lately created." 2 Dissenting Protestants, as 
well as Roman Catholics, were punished as criminals. The 
first instance of this was in June, 1567, when a religious 
meeting at Plumbers' Hall was broken up and 14 or 15 dis- 
senters sent to prison. 3 An act of 1593 (35 Eliz., c. 1), 
bore very heavily upon both Romanists and Independents. 
Many of these last fled to Holland to escape imprisonment, 
and two of their number, Barrow and Greenwood, were 
executed for spreading seditious writings. 4 During the 
Roman Catholic reaction under Mary, 277 " heretics" were 
burned to death. 5 Mere possession of books "filled with 
heresy and treason," made the possessor a rebel and liable 
to execution under martial law. 6 This was probably more 
tyrannous than any act of Henry VIII. 

Returning from this discussion of increased criminality 
due to religious development, let us consider the other five 
treasons, created by act of Parliament during the reign of 

1 Strype's Annals, iii, 187; Hallam, i, 163; and (23 Eliz., c. 183). 

2 Lingard, viii, 355-6. Elizabeth's ministers always claimed that no one was 
executed for his religion — that every punishment had in view the safety of the 
state. But see case of Mayne, 1577. Hallam, i, 148 and 164. 

3 Strype's Life of Parker, i, 481-2. 

4 Punished under (23 Eliz., c. 2), 1580. See also hanging of Thacker and 
Copping, Anabaptists, in 1583, for denying the queen's ecclesiastical supremacy. 
Strype's Annals, iii, 186, and Lingard, viii, 183-185. 

5 Strype, iii, 473; Hallam, i, 105; Lingard, vii, 285, states the number as 
" almost 200." 

6 See royal proclamation in last year of Mary's reign. Hallam, i, 42-3, and 
Strype, iii, 459. 



Tudor England 207 

Henry VIII. , and those who suffered under them. 1 These laws 
aimed to secure the succession to the throne, and made it 
high treason to attempt to alter the settlement of the suc- 
cession, to assert the validity of certain marriages of Henry 
VIII., or to deny the validity of certain other marriages. 
Test oaths were provided by these laws and it was high 
treason obstinately to refuse to take them. The act of 1536 
even made it treason to refuse to " declare their thought and 
conscience," in answer to questions on the oath. Such laws 
were of terrible severity, yet the Wars of the Roses and the 
evils of a disputed succession were fresh in all minds, and 
the nation had no wish to renew the experience. Both 
houses of Parliament united in sending to the scaffold many 
innocent and some guilty victims of Henry's jealousy, or 
hatred, and " new political offences were created in every 
Parliament against which the severest penalties were de- 
nounced." 2 The insurgent lords and their followers, im- 
plicated in the great northern rebellion (1536), were pro- 
ceeded against by martial law, after the king's promise of a 
general pardon. Thirty-five of the leaders, high in Church 
and State, were condemned, and hanged, beheaded, or 
burned. 3 

Henry VIII. overawed the whole nation by his strength 
of will and greed of blood, but he exasperated his people 
also, and when Edward VI. ascended the throne the new 
treason laws were all repealed. 4 Nothing remained treason 

1 The statutes are : (25 Hen. VIII., c. 22) 1534; (28 Hen. VIII., c. 7) 1536; 
(32 Hen. VIII., c. 25) 1540; (33 Hen. VIII., c. 21) 1542; (35 Hen. VIII., c. 

1543- 

2 Hallarn, i, 33. Victi?ns of" constructive''' and other treasons: De la Pole, be- 
headed 1 5 1 3 ; Edward Stafford, Duke of Buckingham, 1 521; Henry Courtney, 
Marquis of Exeter; Thomas Cromwell, 1540; Margaret, Countess of Salisbury, 
1541; the Earl of Surrey, Queen Anne Boleyn, Queen Catharine Howard, and 
others who suffered with her. See State Trials, i. 

1 State Trials, i, 477, and Bishop Burnet, i, 351 etseq. 
*(i Edw.VL, c. 12), 1547. 



2o8 Enforcement of Penalties 

except a denial of the king's ecclesiastical supremacy and 
offences under 25 Edward III. But the new administration 
scrupled not to bend the laws to secure attainder of treason 
by Parliament, as in the conviction of Lord Seymour, 
when the accused was not even permitted to be heard in his 
own defence. 1 In 1549 treason was extended by act of 
Parliament to cover mere rioting. 2 Queen Mary at first 
brought treason back to the limits assigned by 25 Edw. 
III., but after the Spanish marriage new treason laws were 
enacted, much like laws of Henry VIII. and Edw. VI. It 
was also made treason to pray God to shorten the life of the 
queen. 3 During Elizabeth's reign, and especially after the 
pope's Bull of Deposition and Mary Stuart's captivity in 
England had exposed the queen to serious dangers, many 
acts creating or renewing old treasons were passed by Par- 
liament for her protection and the safety of the realm. 4 
A statute of the year 1584 made it high treason for any 
Jesuit, or seminary priest, born within her majesty's domin- 
ions, " to come into, be, or remain in any part of this realm," 
and for any subject educated in any foreign college or sem- 
inary, not to return to England and take the oath of suprem- 
acy within six months after proclamation made in London. 
These laws undoubtedly put many men in constant danger 
of their lives as traitors to the state, and the one hundred 
and ten Roman Catholics put to death during the last .fifteen 
years of Elizabeth's reign prove that the penalties were en- 
forced. 5 

1 State Trials, i, 483. This most iniquitous precedent of Henry VIII.'s reign 
was negatived by law a few years later — the same act also creating some new 
treasons. See 5 and 6 Edw. VI., c. 11, § 9 (1551-2). 

2 How many offenders under treason laws then : how few to-day ! This old 
crime has been largely done away with by the most successful and civilized nations. 

■ 1 and 2 Phil, and Mary, c. 9 (1554-5). 

♦Such are (1 Eliz., c. 5) 1558, (13 Eliz., c. 1) 1571, (23 Eliz., c. 1) 1580, and 
(27 Eliz., c. 2) 1584. 
5 Some of those who suffered under the treason laws of Elizabeth were : Thomas 



Tudor England 209 

But beside the multiplication of crimes of religion and 
constructive treasons, another great class of crimes was 
created, or very largely developed, by decisions of the Star 
Chamber; decisions afterward accepted by the court of King's 
Bench as forming part of the common law of England. 1 
11 Perjury, forgery, gross public acts of indecency, conspira- 
cies to commit crimes, or indeed to do anything unlawful," 
and, to some extent, political libels were thus made crimes. 2 
Only by very slow degrees was perjury in all its forms made 
criminal by the court of Star Chamber. The first statute in- 
posing a temporal penalty for this offence was not passed 
till 1540. 3 As for attempts at crime, hitherto unpunished by 
the laws, excepting very rarely " under the name of assaults 
or the like," 4 Hudson writes, in his Treatise on the Court of 
Star Chamber: " It is the great and high jurisdiction of this 
court, that it punisheth errors creeping into the common- 
wealth, which otherwise might prove dangerous and infectious 
diseases — yea, although no positive law or continued custom 
of common law giveth warrant to it." As examples Hudson 
mentions, " attempts to coin money, to commit burglary, or 
poison, or murder." 5 As late as 1573 there was no legal 
punishment for even the most desperate attempts at murder. 6 

Howard, Duke of Norfolk, (1571), State Trials, i, 95, 97-8; John Felton, ibid., 
i, 10S6; Queen Mary of Scotland, ibid., i, 1161 (1586) ; Earl of Northumberland, 
ibid., i, 1 1 12 (1585J; Earl of Arundel, ibid., i, 1250 (1589); Sir Christopher 
Blunt and five others, ibid.,\, 1410 (1600"); Dr. Wm. Parry, ibid.,\, 1096 (1584); 
Thomas and Christopher Norton, ibid., i, 1083 (1570); and very many others 
tried and executed with great cruelty, ibid., i, 1158-78, etc. 

1 Stephen, ii, 224 and 229. 

2 Stephen, ii, 470. 

3 (32 Hen. VIII. , c. 9, § 3) ; and see Stephen, iii, 244 and 247; and (5 Eliz., 
c. 9.) * Stephen, ii, 223. 

5 Hudson, p. 107-8. Instances of such crimes are the attempt by Frizier 
against Baptista Baseman, in 5 Elizabeth (1563), and that attempt of the two 
brothers who were whipped and gazed in Fleet street, in 44 Elizabeth (1602). 

•Stephen, iii, no-ill. 



2 io Proseaitions for Libel 

Thus we can see how busy was the court of Star Chamber 
in creating new crimes (and necessarily also criminals), in a 
direction which has since become generally recognized as a 
proper and necessary field for social punishment. In our 
own age " all attempts whatever to commit indictable offen- 
ces are misdemeanors, unless by some special statutory 
enactment they are subject to special punishment." 1 

Libels attracted but little attention till the days of Eliza- 
beth, when the court of Star Chamber was at the height of 
its power. The great intellectual movement of the age, and 
especially the invention of the printing press, gave a greatly 
increased importance to political writings, and thus increased 
social intelligence led to the development (the necessary 
development) of new crimes. Prosecutions for libel in the 
court of Star Chamber included : " Libels against the king's 
person and nobles," and " scandalous letters." 2 The trades 
of printing and bookselling were closely regulated by ordi- 
nances of the Star Chamber (1585). 3 Most men were for- 
bidden to print at all, under penalty of a year's imprison- 
ment; and even the the selling of books, printed contrary to 
ordinance, was punished by three months in gaol. 4 It was a 
crime to publish or even to possess any book or pamphlet 
in favor of the Romish faith. 5 

From very early times some forgeries were penal offences 

1 Stephen, ii, 224. 

1 Peter Breveston. Sir Wm. Hale's case against Ellis. Notable cases are: Stubbs 
(1579), who lost his right hand for the publication of his " Gaping Gulf;" and 
Udall, convicted for writing a book against the queen (1589); see also case of 
Penry. Some libels were very possibly punished as treasons in earlier times. 
See Stephen ii, 302. 

s See also (1 Ric. Ill, c. 9); and (25 Hen. VIII., c. 15). The punishments 
were fines, to crown and party suing. 

4 Hallam, i, 239. 

*Strype's Grindal, p. 124; and Appendix, p. 43. Also a proclamation dated 
February, 1589. 



Tudor England 211 

at common law, but they were punished, if at all, as torts, 
by damages paid to the individual injured. 1 Early in the 
history of the Star Chamber, we find many forgeries of all 
kinds punished not as torts, but as crimes against the state, 2 
although it was not till 1562 that the important statute 
(5 Eliz. c. 14) was directed "against the forging of evi- 
dences (false deeds) and writings." This act recites the 
great evils resulting from the "small, mild and easy" pun- 
ishments hitherto inflicted, and decrees very heavy damages, 
mutilation and perpetual imprisonment, for any person who 
forges " any false deed, charter or writing sealed, court-roll 
or the will of any person or persons in writing," or " who 
shall give in evidence any such charter, deed or writing, 
knowing the same to be false or forged." An act of Queen 
Mary's reign 3 (1553) made treasonable the counterfeiting 
of foreign coin passing current in England by the queen's 
consent, and also the forgery or counterfeiting of the queen's 
sign manual, privy signet, or privy seal. Many other stat- 
utes from time to time created new coinage offences, and de- 
creed penalties for some as treasons and others as felonies or 
misdemeanors. 4 

In 1530 poisoning was made high treason. The first 
statute punishing fraudulent bankruptcy was passed in 1542 
and was followed by another in 1570. 5 The creation of this 
new crime was made socially necessary by the extension of 
the credit system (due to the growth of trade), which 
opened a new field for dishonesty ; but the penalties decreed 
were at first very light. On the other hand, unfortunate 
debtors were treated almost like criminals ; but they cannot 

1 By (1 Hen. V, c. 3), 1413, a fine to the king was added. Forgery of certain 
seals was high treason. 

2 Hudson. Star Chamber, p. 65. 

3 (1 Mar)-, Sess. 2, c. 6). * Stephen, iii, 179. 
5 (34 Hen. VIII., c. 4) and (13 Eliz., c. 7). 



2 1 2 Malicious Injuries to Property 

be classed with criminals, for imprisonment was inflicted 
only at the suit of the injured creditor, and not by the state 
directly. 

In 1545, the statute 37 Henry VIII. c. 6 created many 
new crimes under the class " malicious injuries to property." 
The preamble to this law of Henry VIII. is interesting, for it 
shows that the legislators thought malicious injuries to prop- 
erty something entirely new in the land. It reads : " Whereas 
divers malicious and envious persons . . . have of late in- 
vented and practised a new and damnable kind of vice." Of 
course the social evil in such practices was just becoming 
apparent, and the result was the creation of some new 
crimes ; but very little attention was paid to such offences 
until the reign of George I. 1 

Very severe statutes against vagrants, "sturdy rogues" 
and vagabonds were enacted at frequent intervals through- 
out the Tudor period, and many of these " poor Toms" were 
whipped at the cart tail through the streets, stocked, branded 
or imprisoned ; but vagrants were so numerous that prob- 
ably thousands of them continued their wanderings without 
ever hearing unfavorably from the laws against them. 2 
Harsh game laws continued to make hunting a monopoly of 
the wealthy land owners. 3 There were laws against usury, 
but they were utterly ineffective, and at last interest up to 
10 per cent, was legally distinguished from usury, in 1545. 4 
The last general statute decreeing punishment against re- 
grators and forestallers was 5 and 6 Edw. VI., C. 14, passed 
in 1552. Prosecutions for these offences lasted even into the 
nineteenth century, but the mischievous laws were very com- 

1 (43 Eliz., c. 7), 1601; and Stephen, iii, 188. 

2 Traill, iii, 241-3, 250-2, 356, 360. 

3 (11 Hen. VII., c. 17), 1494, and other statutes. 

4 (3 Henry VII. c. c. 5 and 6) and (37 Henry VIII. c. 9). 



Tudor England 2 1 3 

monly not enforced. 1 Many sumptuary laws were placed 
upon the statute books during Tudor reigns, but they were 
ineffectual. 2 Multitudinous acts for the proper care of 
highways appear from the time of Henry VIII., but the laws 
were not well enforced. 3 Forcible entry, or the taking pos- 
session of lands and property by force, was very common, 
and certainly not a crime in Tudor times and the cen- 
turies immediately preceding. The king's own actions 
often clearly countenanced such conduct in his followers. 
Yet there were many statutes against the offence, which was 
generally considered as a tort, with double or treble dam- 
ages to the plaintiff, if he could collect them. 4 Piracy was 
very far from being a crime in the Elizabethan age, despite 
28 Hen. VIII. c. 15. High-born gentlemen regarded it 
as an honorable profession, and a sure road to fame and 
fortune. Government encouraged these sea rovers, and the 
English nation applauded. 5 The African slave trade was 
started about 1562 by Sir John Hawkins, and excited no 
moral abhorrence. Even Queen Elizabeth shared in the 
profits of Hawkins' second voyage, and the Guinea or Afri- 
can Company wab incorporated to carry on the business. 6 
Not until modern times has growing social morality and in- 
telligence made such acts highly criminal. 

Benefit of Clergy. — Early in this chapter it was made clear 
that the greatest need of England at the beginning of the 
Tudor period was the restoration of order, by the sure and 

1 (5 and 6 Edw. VI., c. 14), recites that former statutes " have been found de 
ficient." And see Stephen, hi., 201. 

1 (1 Hen. VIII., c. 14), and many later acts; and Traill, iii, 388. 

s See (5 Eliz., c. 13, § 1), which relates the " inefficiency" of the statutes. 
There were four other highway acts during this single reign. 

* (8 Hen. VI., c. 9); (4 Hen. IV., C.4J; also laws of Ric. II., Henry VIII., 
Eliz. and Jas. I. See Pike's History of Crime in England, for abundant evi- 
dence relating to forcible entry. 

5 Traill, iii, 473"5» 539-4Q- * Ibid., iii, 541. 



2 1 4 Benefit of Clergy 

more equal enforcement of justice, under a strong, despotic 
king. We have seen how the anarchic feudal nobility and 
their followers were punished as criminals by the court of Star 
Chamber, and have watched the multiplication of treasons, 
felonies and some misdemeanors in an age of rapid change 
and social development, political, intellectual, religious and 
industrial. But the statutes limiting ecclesiastical jurisdic- 
tion, remedying some of the grossest defects of antiquated 
law, extending and equalizing the operation of justice, and 
thus largely increasing the nation's criminal class, have not 
yet received attention. The privilege of clergy consisted 
originally in the right of men in holy orders (" habitum et 
tonsuram clericalem ") and offenders against them, to be 
tried for their misdeeds in ecclestiastical courts alone. By 
the reign of Henry VI. it had become established that the 
clerk must be convicted in the lay courts before he could 
claim his clergy. 1 But a statute of 135 1 extended benefit of 
clergy to " all manner of clerks, as well secular as religious, 
which shall be from henceforth convict before the secular 
justices;" and the judges interpreted this to mean, "every 
one who could read, whether he had the clerical dress and 
tonsure or not." 2 How many malefactors this must have 
saved from punishment as criminals, and what a farce it made 
of justice, the following description 3 of an ecclesiastical trial 
by the antiquated system of purgation shows : 

" The trial was held before the bishop in person, or his 
deputy, and by a jury of twelve clerks, and there first the 
party himself was required to make oath of his own inno- 
cence ; next, there was to be the oath of twelve compurga- 
tors, who swore they believed he spoke the truth ; then wit- 

1 Stephen, i, 460. 

1 Ibid., i, 461; Peere Williams, iii, 447. 25 Edw. Ill, Stat. 3, old form, or 6, 
new form, 1351. 

8 From R. vs. Burridge (1735); Peere Williams, iii, 447. 



Tudor England 2 1 5 

nesses were to be examined upon oath, but upon behalf of 
the prisoner only ; and lastly, the jury were to bring in ver- 
dict upon oath, which usually acquitted the prisoner, other- 
wise, if a clerk, he was degraded or put to penance." x 
Hobart speaks of purgation as " turning the solemn trial of 
truth by oath into a ceremonious and formal lie." 

As has been seen, the House of Commons in the four- 
teenth century repeatedly urged the reformation of the ec- 
clesiastical courts, and the exclusion of all the laity from 
their jurisdiction, but the only result seemed to be the en- 
larging of church privilege, and the screening of more evil 
doers from justice. What Parliament had failed to do the 
strong arm of the Tudors at once began to accomplish. In 
1487, 2 it was enacted that every person convicted of a clergy- 
able felony should be branded on the brawn of his thumb 
with an " M" for murder, or a " T" for theft, and that any 
such branded person again claiming benefit of clergy should 
be denied it, unless he were actually in orders, and if or- 
dained, unless he furnished proofs from the Ordinary within 
a day specified by the judge. 

Up to this time there were but few felonies at common 
law. Coke's " Third Institute" only mentions seven, namely, 
homicide (including murder and manslaughter), rape, burg- 
lary, arson, robbery, theft and mayhem. Death was the 
penalty for all these crimes, except petty larceny (theft 
under 12 pence) and mayhem; but any man who could 
successfully plead his clergy escaped hanging and probably 
all other punishment worthy the name, thus happily belong- 
ing to a class of men who could with difficulty make them- 
selves criminals, unless indeed they insisted on becoming 
traitors ; for high treason was probably never clergyable, 3 

1 A paraphrase by Stephen. See also Searle vs. Williams; Hobart, pp. 289, 291 
(1620). 

J 4 Henry VII., c. 13. 8 Hale, ii, 330-331 ; and 25 Edw. III., Stat. 3 (1350). 



216 Equalizing Justice 

though all the felonies were originally subject to this saving 
clause. 1 

As late as the reign of Henry VII. there were apparently 
but two forms of felony excepted from benefit of clergy — 
namely highway robbery and wilful burning of houses. 2 In 
1496, a statute, 12 Hen. VII., C. 7, took away this privilege 
from laymen " prepensedly murdering their lord, master or 
sovereign immediate" (thus committing petty treason); 
giving as a reason that " many and divers unreasonable and 
detestable persons, lacking grace, wilfully commit murder" 

"in trust to eschew the peril and execution of the 

law by the benefit of their clergy." 3 This was the first of a 
series of statutes which, during the next century, made jus- 
tice more equal in the land, and must have largely increased 
the number of criminals. In 1 5 12, persons committing mur- 
der in churches, on highways, etc., were deprived of clergy. 4 
In 1 53 1, petty treason, "wilful murder with malice pre- 
pensed," robbing churches or other holy places, certain 
other kinds of robbery, and some forms of arson, were de- 
clared non-clergyable for all laymen. Clerks in orders, 
guilty of these crimes, were to be imprisoned for life, unless 
— note how easily they escaped punishment even yet — " they 
could find two sureties in £20 each for their good behav- 
iour." 5 In 1536, piratical offences were excluded from 
clergy. 6 In 1547, benefit of clergy was taken away in all 
cases of murder, certain cases of burglary and housebreak- 
ing, highway robbery, horse stealing and robbing churches. 7 
In 1565 "felonious taking of money, goods, or any chattels, 
from the person of any other, privily without his knowl- 

1 Stephen, i, 463. However, the Church did not always interfere to save even 
clerical offenders from severe punishment at the hands of the temporal courts. 
See Traill, ii, 475. 

2 Hale, ii, 333. 3 See Case of Grame. 

4 4 Henry VIII., c. 2. 5 23 Hen. VIII., c. 1, §§ 2, 3, 4. 

6 28 Hen. VIII., c 1 5, § 3. 7 1 Edwi VI., c. 1 2, § 9. 



Tudor England 2 1 7 

edge," was excluded from benefit of clergy. The courts 
interpreted this to mean above a shilling in value. 1 In 
1576, "any manner of rape or burglary" was declared 
"without any allowance of the privilege of clergy;" 2 but 
the sections of this statute relating to burglary were very 
unskillfully framed. Abduction and forced marriage of 
heiresses was made a simple felony, with benefit of clergy, 
which must have practically negatived the law, by 3 Hen. 
VII., c. 2. 3 This offence seems to have been regarded as 
quite in the natural order of things. 4 39 Eliz., c. 9, 1597, 
declared former statutes " insufficient," and decreed the 
death penalty without clergy. 

From this legislation it is evident that the severity of the 
criminal law was greatly increased under the Tudors, for the 
terrible laws which had hitherto reached, for the most part, 
only the utterly illiterate and low-born, were now to be ap- 
plied to the punishment as criminals of the educated, the 
powerful, the priestly classes of the nation, as well as to all 
men who for some slight knowledge of reading had been 
classed among the clerks, or servants of the Church. 5 But 
these statutes were so special and so variously worded that 
many loopholes still remained through which men could 
plead and obtain benefit of clergy. In this way, doubtless, 
many malefactors continued to escape the just reward of 
their deeds. 6 

To sum up this change in the laws : By the close of the 
sixteenth century death was the penalty decreed for the fol- 
lowing crimes whether the offender could read or not: 

1 8 Eliz., c. 4. 2 18 Eliz., c. 7. 

3 Also 4 and 5 Ph. and Mary, c. 8. * See Pike. 

5 Women, not being eligible for holy orders, could not plead benefit of clergy. 
Mark the inequality of justice. 

6 This evil was not remedied until (3 Wijl. and Mary, c. 9, § 2), 1691, and 
(1 Anne, Stat. 2, c. 9). As the number of those who could plead benefit of clergy 
increased, the crimes to which this privilege extended became fewer and fewer. 



2 1 8 Sturdy Rogues and Vagabonds 

High treason, petty treason, piracy, murder, arson, burglary, 
housebreaking and putting in fear, highway robbery, horse 
stealing, stealing from the person above the value of a shill- 
ing, rape and abduction with intent to marry. For all persons 
"who could not read, every kind of felony, including man- 
slaughter, every kind of theft above the value of a shilling, 
and all robbery were capital crimes. 1 

Of how this system worked in practice we have but 
scanty evidence. It is probable that serious crime was very 
prevalent in the country districts, but not nearly so common 
in the cities. In 15 14 the royal treasure-wagons were at- 
tacked and robbed upon the road, and eighty men were ex- 
ecuted for the crime. The disorder and suffering of the 
times, the large amount of unemployment, created a great 
multitude of vagabonds and idle rogues, whom the oft- 
repeated penal statutes charge with " contynuall theftes," 
" robberyes and all evill actes and other mischiefs;" driven 
to such actions often, as the Act of 1533-4 declares, by their 
" myserye and povertie." Whether from public sympathy 
for such unfortunates, or for some other reason, the terrible 
penalties against vagabonds were very negligently enforced, 
as the statutes themselves bear witness. Thus the preamble 
to 1 Edw. VI., c. 3, 1547, states that former laws had ac- 
complished almost nothing for the suppression of vagrancy, 
because of the " folishe pitie and mercie of them which 
should have seen the godlie Lawes executed." It is very 
doubtful whether mere vagabondage can be considered a 
crime in that age. In the cities — London for example- 
there does not seem to have been a very great amount of 
serious crime. A fearful murder, like that of Arden of Fever- 
sham (1551 ), created, apparently, just as much excitement 
as it would to-day. No criminal statistics of convictions or 
executions were kept till long afterward. But many of the 

1 Stephen, i, 467. 



Tudor England 2 1 9 

depositions and other records of the courts of Quarter Ses- 
sions, held at Exeter Castle, have been preserved. They 
begin in 1592. 

"At the Lent Assizes of 1598 there were one hundred 
and thirty-four prisoners, of whom seventeen were dismissed 
with the fatal S. P., it being apparently too much trouble to 
write sus. per. coll. Twenty were flogged ; one was liber- 
ated by special pardon and fifteen by general pardon ; 
eleven claimed benefit of clergy, and were consequently 
branded and set free." " At the Epiphany Sessions pre- 
ceding there were sixty-five prisoners, of whom eighteen 
were hanged. At Easter there were forty-one prisoners, 
and twelve of them were executed. At the Midsummer 
Sessions there were thirty-five prisoners and eight hanged. 
At the Autumn Assizes there were eighty-seven on the 
calendar and eighteen hanged. At the October Sessions 
there were twenty-five, of whom only one was hanged. 
Altogether there were seventy-four persons sentenced to be 
hanged in one county in a single year, and of these more 
than one-half were condemned at Quarter Sessions.'' * 

Hamilton believes there was a special crusade against 
criminals in Devonshire at this time ; but if each of the 
forty English counties averaged twenty executions in the 
year, or a little more than a quarter of the number of capital 
sentences in Devonshire in 1598, this would make a yearly 
average for all England of eight hundred criminals who paid 
the death penalty for their offences. The population of the 
country at this time was about 4,000,000, and it is quite pos- 
sible that one in every 5,000 of the inhabitants was sent to the 
gallows every year. At all events, the number was notoriously 
very great. As Coke writes in the conclusion of his Third In- 
stitute : " What a lamentable case it is to see so many Chris- 

1 Hamilton, History of Quarter Sessions, pp. 30-1, compiled from Exeter 
Records. 



2 20 Murder and Homicide 

tian men and women strangled on that cursed tree of the 
gallows, insomuch as if in a large field a man might see to- 
gether all the Christians that but in one year throughout 
England come to that untimely and ignominious death, if 
there were any spark of grace or charity in him, it would 
make his heart to bleed for pity and compassion." Coke 
points out three remedies : Education, laws to set the idle 
on work, and " that forasmuch as many do offend in hope of 
pardon, that pardons be very rarely granted." Evidently 
there had been a very great change since the fourteenth and 
fifteenth centuries, when the great lords overawed or cor- 
rupted the courts of justice for the protection of their guilty 
followers, and the ecclesiastical courts shielded another large 
section of Englishmen from punishment as criminals. 

Murder. — The history of the death penalty for murder 
well illustrates this change. It was not until Tudor times 
that a clear legal distinction was drawn between murder and 
homicide, and " unlawful killing with malice aforethought" 
was excluded from benefit of clergy, thus making that por- 
tion of the criminal law bear equally upon all men. 1 How 
necessary was this change which the increasing intelligence 
and moral sense of the nation demanded, a few facts will 
clearly prove, but it must have largely increased the num- 
ber of serious criminals. 

" Till 1487 any one who knew how to read might commit 
murder as often as he pleased, with no other result than that 
of being delivered to the Ordinary to make his purgation, 
with the chance of (its) being delivered to him 'absque pur- 
gatione.' That this should have been the law for several 
centuries seems hardly credible, but there is no doubt that 
it was. Even after 1487, a man who could read could com- 

x The statutes which by degrees intraduced this important change are: 12 
Henry VII., c. 7 (1496), which applied to petty treason; 4 Henry VIII., c. 2 
(1512); 23 Henry VIIL, c. 1, §§ 3 and 4 (1531); 1 Edw. VI., c. 12, § 9 (1547). 



Tudor England 2 2 1 

mit murder once with no other punishment than that of hav- 
ing M branded on the brawn of his left thumb, and if he was 
a clerk in orders he could, till 1547, commit any number of 
murders apparently without being branded more than once." 1 
The passionate blow unintentionally causing death was 
probably too common, and seemed too highly natural 
among the higher classes, to be socially regarded as criminal 
in those days of unrestrained temper. It was simply a mis- 
fortune — an unfortunate accident. When the laboring classes 
were tied to the soil, the master who killed his serf in a fit 
of anger was certainly very far from being thought a crim- 
inal. So long as the social mind confused mere homicide 
with wilful murder, it was not ready to punish, or at any 
rate not to punish severely, the revered clergy or any mem- 
ber of the governing classes for such an act. Naturally the 
weight of the upper orders went to maintaining this good 
old custom of practical immunity. It was good not to be 
a criminal, and hang for it. But with the laboring masses 
all was very different. They should have learnt by long 
centuries of oppression to curb their tempers and not strike 
deadly blows. It was not good for society to let them get 
into so bad a habit. Consequently, the low-born, ignorant 
man-slayer paid with his life for the life he had taken. But 
when knowledge of reading became diffused among the 
common people — how then? The middle classes were at- 
taining to power. People were thinking more clearly and 
intelligently. The upper classes had become discredited. 
Murder was distinguished from homicide, and the law was 
made equal for all men. Every murderer was henceforth 
(in theory at least) a heinous criminal, and his punishment 
was death. 

1 Stephen, i, 463-4. 



222 Prevalence of Serious Crime 

CONCLUSION 

England in the sixteenth century had great need of strong 
law, strongly enforced against all men, and this is what her 
Tudor sovereigns gave her. But all the great nations of 
Europe, and not England alone, then felt the need of a dic- 
tator. It was an age of great religious, political, intellectual 
and social upheaval, when the old feudal state was passing 
into the modern nation. Everywhere we find concentration 
of power in the hand of a despotic and often of an absolute 
monarch, strong enough to hold the nation firmly together 
and crush the growing forces of anarchy and confusion. It 
was a period of rapid growth and of very greatly increased 
crime and criminals. In England this flood of criminality 
largely took the direction of acts : 

i. Against the life and person of the king: treasons, 
libels, etc. 

2. Against national unity and the majesty of the law: 
statutes of maintenance and livery, etc., for the suppression 
of the anarchic feudal baronage and their followers, were 
now first enforced. 

3. Against the established religion: heresy, praemunire 
and other laws, new and old. 

4. In violation of the new laws, making justice more 
equal for all men, by excluding many serious crimes from 
benefit of clergy. 

The criminal law was terribly severe in Tudor times, and 
punishments were largely enforced. Out of 387 persons 
presented for trial in a single county, Devonshire, in one 
year (1598), 74 were hanged. This is not far from one-fifth 
of those presented. The amount of what was regarded as 
serious crime seems to have been great — very much greater 
than at present, in proportion to the population. 

Does this negative the idea that crime increases as society 
develops to a higher stage of civilization, and that such in- 



Tudor England 223 

crease is possibly a necessary factor in upward social 
progress — new criminal laws safeguarding new growth? 

Not at all. The facts support the theory, for they show 
a very large increase in the amount of serious criminality, 
resulting from the operation of new laws or of old laws now 
first successfully enforced, at a time of rapid growth, when 
the English nation was at length entering into, taking pos- 
session of, and safeguarding that larger life, truer liberty, 
more strong and equal justice, for which it had long been 
preparing. 

Social progress is not regular and equal, year by year, 
century by century. It comes by leaps and bounds — a 
sudden development, an almost fierce expansion, followed 
by a long period of quiescence or seeming retrogression, a 
time of silent preparation. Like a crustacean, shedding its 
old shell, which in a few hours seems ridiculously small, it 
expands rapidly for a brief season until the new sheathing 
hardens round it, and then for a year it stores its powers, 
preparing for another crisis, another period of apparently 
sudden growth. 1 

The sixteenth century, in England, with its greatly increased 
criminality, followed upon a long period of moral degrada- 
tion, corruption and intimidation of justice, and of decreas- 
ing crime. While the new feudalism was triumphant there 
were but few statutes creating new criminal offences, and 
most of these could not be enforced. In the seventeenth 
century we reach another period of violent upheaval and 
civil war, when but little was added to the criminal law, 
and consequently there were but few new crimes in England. 

But was there more crime in the sixteenth century than in 

1 Criminal law is in some respects like the crustacean's shell. It hardens round 
the nation and safeguards the social life, but in time it becomes too small and must 
be broken through and extended to permit new growth, while casting a more 
ample protecting shield around the larger life. 



224 Violence vs. Fraud 

our own day? Certainly not. The nation made a strong 
attempt at that time to stamp out certain forms of most 
serious crime by the infliction of severe punishment. On 
the other hand many bad crimes were then practically un- 
known, for the social mind had not yet created them, by 
stamping such actions with public disapproval and punishing 
them as crimes. Doubtless in Tudor England there were 
more murderers, highway robbers, etc., than in the England 
of to-day, and the wholesale hangings probably rid the 
nation of a large part of its brutal criminal degenerates. 
Society then and since has been to a great extent successful 
in stamping out these old deeds of serious and often pas- 
sionate crime. Modern man has learned to keep the peace 
and curb his temper, thanks to strong law and the hanging 
of bad human stock. In every progressive and truly pros- 
perous nation we should expect to find, and I believe very 
generally do find the laws successful, and old crimes 
gradually diminishing. 1 But crimes of fraud have to-day 
taken the place of crimes of violence, and society is now en- 
gaged in its struggle against the fraudulent criminals its busi- 
ness and social developments have called into existence. 2 
Some serious forms of crime thus show decreasing crimi- 
nality, while other serious crimes have been coming into 
existence, and the enforcement of the laws against them has 
increased the number of criminals. 

It is not, however, upon the doubtful weighing of decrease 
and increase among serious crimes that the proof or failure 
of our theory depends. The modern age is an age of mis- 
demeanors, and the Tudor age was not. There is the truth 
in a nutshell. The nation was so occupied with great 
changes in Church and State, the legislature and the courts 

1 Modern criminal statistics confirm this. 

2 Some of these crimes are fraudulent bankruptcy, and forgery in writing, of 
various kinds. 



Tudor England 225 

of justice so busy with new heresy, new treason and new 
felony, that there was little time or thought for the creation 
of petty misdemeanors, safeguarding the minor needs of 
social life. It was a time for stern laws and terrible punish- 
ments, if the English were to be held firmly together, 
changed from a feudal state into a modern nation, the 
Church reformed, justice equalized, anarchy crushed, order 
established. One hears little of misdemeanors in those days. 
Of course they existed and were punished to some extent by 
the pillory, imprisonment, branding and fines; but the old 
system of fines had fallen greatly into disuse, 1 the gaols 
were mostly for the detention of debtors and those awaiting 
trial, and there was then no prison system in England. The 
trained police force is a modern institution. One important 
reason why hanging, branding, flogging and mutilation were 
so frequently inflicted, was because no other system of pun- 
ishment for serious crimes had yet been devised. Either 
death must rid the nation of the malefactor forever, or 
branding or mutilation must mark him, so that all may know 
him for a criminal and be on their guard. 

In modern England, according to the census of 1891, 
there is one police officer for every 714 of the population, a 
grand total of 40,596 men employed to perserve order and 
bring offenders against the laws to justice. A great multi- 
tude of so-called police-court offences have been created, 
and the police force is very largely engaged in the arrest 
and prosecution of perpetrators of these and other misde- 
meanors, most of which were unknown in the sixteenth cen- 
tury. Thus, under the Elementary Education Act, there were 
82,745 persons convicted and punished each year, from 1889 
to 1893, inclusive. Under the head of police regulations the 
annual average for the same period was 77,980. Other mis- 
demeanors are cruelty to animals (11,855), offences in re- 

1 Stephen, ii, 203, 



226 Modern Misdemeanors 

lation to dogs and diseases of animals (7,095), vaccination 
acts (2,312), railway offences (3,5 54) , stage and hackney 
carriage acts (9,478), offences against sanitary laws (8,822). 
It is this multitude of petty transgressions — of ever-increas- 
ing misdemeanors — punished by the modern state, and 
unknown to the laws a single century ago, which swells our 
criminal lists. We have more criminals than our ancestors 
to deal with, but it is because society is growing better, 
more sensitive to right and wrong, more interdependent, 
that this is true, and not because we are growing worse or 
more rebellious against law. 1 

1 [See page 15). The offenders punished for modern misdemeanors are as truly 
criminals as are murderers and robbers, for all are punished by society for wrongs 
against itself. 



CHAPTER X 

ENGLAND UNDER THE STUARTS. 1603-1714 

THE sixteenth century was a period of rapid development 
and expansion, the seventeenth one of painful introspec- 
tion and civil strife. Enormous powers had been granted 
the Tudors : 

1. To restore order and enforce the laws, especially 
against the anarchic nobility. 

2. To separate the English Churchfrom Rome and to re- 
form ecclesiastical abuses. 

3. To defend the nation against threatened invasions. 
After the Armada, the work of the Tudors was practically 

accomplished. Their dictatorship was supported by the 
people, and on the whole they used their discretionary 
powers well. They made no attempt to define their author- 
ity, but were content to plead social necessity. Not so 
their successors. James I, "the wisest fool in Europe," 
immediately sought to define the prerogative, and claimed, 
by divine right, an absolute authority above all human law. 
In this he was supported by the Established Church, which 
also maintained the duty of passive obedience to the king. x 
Through Tudor reigns, the middle classes had grown 
strong, wealthy and intelligent, and neither people nor Par- 
liament had relinquished the ancient belief that a king of 
England was such by the wilt of the people, was responsible 
to the people-, and must obey the nation's laws. All the 
Stuart period is filled with the struggle of Parliament (es- 

1 Rnshworth, i, 422-3; Hallam, i, 415. 

(227) 



228 Divine Right of Kings 

pecially the Commons) to curb the royal prerogative; a 
struggle resulting in the beheading of one king, the dethrone- 
ment of another, and the establishment of a new line of 
Protestant sovereigns. But the conflict was religious as 
well as political. Indeed, it is hard to determine which 
element was the more powerful. Puritans were dominant in 
the House of Commons ; they were the great supporters of 
constitutional government and popular liberty against the 
arbitrary and contemptuous despotism of the Stuart kings ; 
but their antagonism to bishops, ceremonies, ritual — all that 
reminded them of the Romish Church — filled them with re- 
ligious zeal and fed the fires of opposition. These two 
great problems, the extent of the royal prerogative and the 
question of state religion, confront us throughout the entire 
seventeenth century, and were already prominent when James 
I. ascended the English throne. A hearty welcome from a 
strong and united nation greeted him ; but both James and 
his son utterly failed to understand the English people and 
the strong, new development of the old constitutional idea. 
Deeply convinced of their divine right to rule the nation as 
they thought best, and supported, not only by the High 
Church prelates x and nobility, but also by many decisions 
of the judges, 2 they thought that the vexatious opposition 
to their beneficent government proceeded chiefly from a 
few turbulent members of the House of Commons, and 
would cease with their suppression. 3 But Parliament after 

1 Rushworth, i, 422-3; Hallam, i, 322-3. 

2 State Trials, ii, 371 (Case of John Bates) ; Hallam, i, 318. Mr. John Bates 
was prosecuted for " refusing to pay a duty on foreign currants, imposed by a 
mere act of the crown." The Court of Exchequer " unanimously supported this 
taxation by prerogative." See Hampden's case, State Trials, in, 825. 

All the judges of Westminster Hall, with but two exceptions, gave judgment in 
favor of the legality of ship money. Monopolies, loans and benevolences also re- 
ceived some legal sanction during this period. See State Trials, ii, 372. 

3 See Rushworth, iv, 482, for attempt of King Charles I. against the five mem- 
bers of the House of Commons. 



Engla7id under the Stuarts 229 

Parliament took up the same grievances, and made money 
grants conditional upon their redress. 1 Neither king nor 
Commons would yield, and the Stuarts, in desperate need 
of money, resorted to all manner of illegal taxation to 
obtain it. Refusal to pay was met by conviction and 
punishment at the hands of judges, bribed or terrified 
into subservience to the crown. 2 Never before, in Eng- 
lish history, had corruption been so widespread, so brazen- 
faced. 3 The decision of the judges in Darnel's, or the 
five knights' case, gave the king the right of arbitrary 
imprisonment, and practically annihilated the 29th clause 
of Magna Charta ; i. e. "No free man shall be taken and 
imprisoned unless by lawful judgment of his peers, or 
the law of the land." 4 The Court of Star Chamber and the 
High Commission Court became the deeply-hated instru- 
ments of royal tyranny and extortion, 5 and were finally swept 
away by the Long Parliament in 1640, when "ship money, 
tonnage and poundage, and all impositions levied without 
consent of Parliament were declared illegal." 6 

Civil war brought victory to the constitutional party, the 
execution of King Charles as a traitor to his country, and 
the establishment of Presbyterianism as the state religion. But 
the melancholy tyranny of the new discipline, the unrest, 
insecurity and uncertainty of the times, brought inevitable 
reaction and the restoration of Charles II. His reign was 
noteworthy for its " good laws and bad government," for the 
triumph of vice and sensuality, for the terrible persecutions 
of non-conformists. Renewed despotism under James II., in 

1 See discussion of the Bates case in Parliament, 1610, and many subsequent 
petitions and remonstrances. 

2 See Pym's speech against Strafford in the Commons. Rushworth, iv, 200. 

3 Hallam, i, 358. 

* State Trials, iii, I. 

5 Rushworth, ii, 475; Hallam, i, 349-50; ii, 9-10, 31. 

'Rushworth, iv, 88; Traill, iv, 14. 



2 30 Traitors and Non- Conformists 

his attempt to reintroduce the Roman Catholic religion, 
contrary to the laws of the land, brought the great revolution 
of 1688, the dethronement of the king, and the final estab- 
lishment of a constitutional and Protestant monarchy. There 
were three successful revolutions in less than half a century; 
and as either party rose to power, it used the strong arm of 
the law to punish, as the worst of criminals, those who 
attempted to overthrow the established order of society. 
Punishment of traitors, libelers and non-conformists was 
frightfully severe, and constantly enforced. 1 Even after 
toleration had been granted to all Protestant sectarians, in 
the reign of William and Mary, penalties against Roman 
Catholics were made more severe. 2 

Criminal statutes were ready weapons against political and 
religious enemies within the state : weapons which each 
triumphant party was compelled to use for the safe-guarding 
of the new social development for which it stood. Many of 
these penal laws were of temporary service only, and have 
since been repealed. Some aided the nation's upward pro- 
gress, some were reactionary and retrogressive, but all were 
intended to support the true life of society as seen by that 
part of the nation then supporting the government; and the 
criminals of the seventeenth century are mainly political and 
religious offenders against these statutes, similar laws of 
previous reigns, and the multitude of prohibitions created or 
resurrected by decisions of the Court of Star Chamber and 
the High Commission Court. 

Early in the seventeenth century the House of Commons 
reasserted its long disused right of impeachment, and Parlia- 
ment became once more a high court of justice, holding the 
powerful ministers of state responsible to the nation for their 
stewardship. Shameless corruption had made its way 
through all departments of official life during the reign of 

1 State Trials. 2 1 Will, and Mary, c. 9 and c. 15. 



England tinder tJie Stuarts 2 3 1 

James I. Lord Chancellor Bacon was convicted on impeach- 
ment by the Commons, and fined ^40,000 for receiving 
bribes from suitors. 1 The Earl of Middlesex, Lord Treas- 
urer, was unanimously convicted of bribery and other 
offences. 2 Other impeachments were those of Mompesson 
and Michell, both convicted and punished ; Field, Bishop of 
Llandaff, censured for bribery, and Sir John Bennet, judge, 
for corruption in office. 3 Under Charles I., Mainwaring was 
impeached, fined ^1,000, and declared ineligible for any 
dignity in the Church, for proclaiming the absolute authority 
of the king in his sermons ; but Charles quickly pardoned 
him and advanced him to a bishopric. 4 In 1640, Strafford 
was impeached and executed for high treason 5 against the 
state, and later Archbishop Laud shared his fate. 6 Evidently 
Parliament was very earnest to put down official corruption, 
and defend the constitutional rights of Englishmen against 
the supporters of royal despotism. The end of the great 
tragedy witnessed the trial and execution of Charles Stuart, 
King of England, as a " tyrant, traitor, murderer and public 
enemy." 7 

The supporters of the Divine Right of Kings were still 
more active in punishing their political and religious oppo- 
nents as criminals. Both executive and judicial authority 
were largely in their hands, and through the Court of Star 
Chamber, with its branches, and the Court of High Commis- 
sion, they used their powers mercilessly. 8 The Earl of 
Oxford, Sir Edward Coke, Sir Robert Philips, Mr. Pym, and 
a few other members of Parliament were sent to the Tower 
or other prisons during the reign of James I., " on pretence 
of having spoken words against the king," or other similar 

1 State Trials, ii, 1088 (1620). 2 Ibid., ii, 1184 and 1250 (1624). 

3 Ibid., ii. * Rusbworth, i, 423; State Trials, iii, 335. 

5 Rushworth, viii, and iv, 267-9. 6 Ibid.,iv, 202. 

7 State Trials, iv, 11 28. 8 Rushworth, ii, 475. 



232 Unjust Judicial Decisions 

offences. 1 Under Charles I. the Earl of Arundel was sent to 
the Tower for a marriage displeasing to the king, and Sir 
John Eliot, Hollis, Selden, Long, Hobart, Stroud, and other 
eminent members of the Commons, were committed, some 
to the Tower, some to the King's Bench prison, and their 
papers seized, "for notable contempt and for stirring up 
sedition, in a warrant under the King's Sign Manual." 2 
"The court was unanimous in declaring they had jurisdic- 
tion, although the alleged offences were committed in Parlia- 
ment." 3 Refusing to contribute to a "benevolence" for the 
king was made a crime by decisions of the Court of Star 
Chamber, early in the 17th century. Thus, Mr. Oliver St. 
John was fined ".£5000 and imprisonment during pleasure" 
for such a refusal and for putting legal reasons for his action 
into a letter. 4 Later, Mr. Richard Chambers was fined 
^2000 and sent to prison for a like offence. 5 Many other 
gentry were thus imprisoned, while common people who re- 
fused to aid the king by contributing to a "general loan" 
were impressed for service in the navy. 6 

The utter tyranny and contempt of the High Commission 
Court for the laws and liberties of Englishmen were glaringly 
shown in the case of Mr. Fuller, lawyer, imprisoned till he 
died for moving the release from prison of two Puritans, 
committed by this court for refusing to take the ex-officio 
oath. Fuller's plea was that "the High Commissioners 
were not empowered by law to imprison or to fine any of his 
majesty's subjects." This was punished as " an unpardon- 
able crime." 7 The State Trials of this period furnish many 

1 Hallam, i, 368. 

2 Rushworth, ii, 79; State Trials, iii, 235 and 293; Hallam, ii, 2. Eliot was 
also fined ^2000, and died in prison. 

'Hallam, ii, 5. 

4 State Trials, ii, 899. 5 Ibid., iii, 373. 

8 Rushworth, i, 426 (1626) ; Hallam, i, 383 and 416. 

T Neal, ii, 39 (1610) ; Fuller, iii, 243. 



Englaiid under the Stuarts 233 

instances of the utterly illegal punishments of both men and 
women. Thus, Lady Shrewsbury was fined £20,000 and 
discretionary imprisonment for refusing to answer damaging 
questions, 1 and Peacham was found guilty of high treason 
(compassing the king's death) for merely having in his 
possession a sermon, never preached nor intended to be 
preached, severely censuring the king and government. 2 
He "was examined before torture, in torture, between tor- 
ture and after torture" (Jan. 19th, 1614) for this offence, 
and, though no confession was secured, he was condemned, 
but not finally executed. 3 

The principal offences within the jurisdiction of the court 
of Star Chamber were : maintenance, riot, forgery, perjury, 
fraud, libel and conspiracy; but this court also established 
its right to enquire into and punish " every misdemeanor," 
especially those of public importance, " for which the law, 
as then understood, had provided no sufficient punishment," 4 
The decisions of this court created many new crimes ; some 
of them very wrongly chosen because the acts punished 
were helpful to the public welfare, but others the true crimes 
of the age because thoroughly injurious to social life, at that 
stage of its development. Thus, " corruption, breach of 
trust, malfeasance in public affairs," and all " attempts at 
felony" were non-indictable by the common law, and prac- 
tically not crimes until the Star Chamber made them so. 5 
The evil that it did largely perished with it, in 1640, but the 
good work accomplished by its authority was permanent and 

1 State Trials, ii, 769. ■ Ibid., ii, 869. 

5 Ibid., ii, 871. See also cases of Arabella Stuart (Winwood, iii, 201, 279); 
Whitlock (State Trials, ii, 765) j Thomas Owen {Ibid., ii, 879), and Williams, 
convicted of high treason for predicting the king's death in 1621. Also, Sir Wal- 
ter Raleigh {State Trials, ii, 1.) 

4 Hallam, ii, 31. 
Hallam, ii, 31. The highest officers of state had been held responsible by 
Parliament for malfeasance in office during the fourteenth and fifteenth centuries. 



234 Enormous Money Penalties 

well worthy of a great court of justice. But this work, both 
good and bad, meant the rapid increase of social prohibi- 
tions and the multiplication of crimes and criminals. When 
we examine the numerous cases tried before this tribunal, 1 
we find that the bulk of them were misdemeanors — many of 
them political — such as libels, conspiracies, breaches of the 
public peace and assaults with violence. The money penal- 
ties inflicted were enormous. Thus, Allington was fined 
£12,000 for marrying his niece ; Sir David Fowlis, for oppro- 
brious words against Lord Wentworth, £5000 to the king 
and £3000 to the party libeled. 2 Sending a challenge to the 
Earl of Northumberland was punished by a fine of £5000. 
For saying the Earl of Suffolk was a base lord, £4000 were 
awarded to him and £4000 to the king. Bishop Williams' 
sentence for concealment of a libelous letter was £5000 to 
the king, £3000 to the archbishop, and imprisonment during 
pleasure. 3 Soap-boilers, for not complying with the king's 
illegal monopoly, were fined £1500, and again £iooo. 4 Be- 
sides crushing fines and life-long imprisonment, the punish- 
ments for more humble criminals were bloody whippings, 
pillory, slitting of the nose, cutting off the ears, branding of 
the cheek or forehead — all inflicted with extreme cruelty. 
The revival of the ancient forest laws and other statutes long 
disused, was simply for the purpose of exacting money to 
supply the urgent needs of the king. Monstrous fines were 
imposed on trespassers. Lord Salisbury was fined £20,000, 
Lord Westmorland, £19,000, and Sir Christopher Hatton, 
£12,000. The Earl of Southampton was nearly ruined by 
forest boundary decisions. For certain alleged breaches of 

1 See Rushworth and State Trials. 

' l State Trials, iii, 586. 3 Ibid., iii, 770. 

4 See also cases of Leighton, Lilburn, Prynne, Burton, Bastwick, and a multi- 
tude of others recorded in Rushworth, ii, 57, 469, 471, and State Trials. For the 
Council of the North, see prosecutions of Sir David Fowlis, Bellasis and Maleverer* 
(Rushworth.) 



England under the Stuarts 235 

their charter rights, the Star Chamber imposed a fine of 
^"70,000 on the city of London, and the money was paid. 1 

History reveals the drawing of an even larger proportion 
of criminal cases into these royal courts of extraordinary 
jurisdiction, with the evident intention of magnifying the 
king's power (by giving royal proclamations the force of 
laws, etc.), and punishing his political and religious oppo- 
nents as criminals, while at the same time securing a consid- 
erable revenue by fines and forfeitures, and habituating the 
nation to a criminal jurisdiction, less restrained and more 
closely dependent upon the will of the king. 2 The Council 
of the North and the Council of Wales (branches of the Star 
Chamber) are said to have " deprived one-third of England 
of the privileges of the common law," and the wide sweep 
of the criminal jurisdiction exercised by the Star Chamber 
itself has just been evidenced. 3 Laud " absolutely governed 
the Church through the High Commission Court," but 
thought the punishments imposed on the refractory, both 
clericals and laity, inadequate. 4 The ordinary courts of com- 
mon law must have been completely overawed and half 
paralyzed during the first half of the seventeenth century. 5 
Juries returning verdicts disagreeable to the government 
were liable to a summons before the Star Chamber, which 
reprimanded, fined, or imprisoned them, thus creating a new 
class of criminals. Records of the courts of Quarter Ses- 
sions in Devonshire and Bucks counties 6 show that the 
criminal cases left for their decision were comparatively few 
and generally unimportant. 

Ecclesiastical Offences. The Court of High Commission 

1 Hallam, ii, 27. 2 Ibid., ii, 34. 

3 Ibid., ii, 99. * Ibid., ii, 46. 

6 See the " emphatically threatening words" of Wentworth, Earl of Strafford, to 
some justices of the peace, " that the king's little finger should be heavier than 
the loins of the law." Rushworth, viii, 149, 154. 

6 Hamilton, History of Quarter Sessions. 



236 High Commission Court 

was created by an act of Queen Elizabeth to try religious 
offences " according to the known boundaries of ecclesiastical 
jurisdiction ;" x but in the seventeenth century it assumed the 
power to imprison and to fine the laity, and became more 
and more tyrannical in its illegal practices. 2 Many Puritan 
clergymen were deprived for non-conformity under James I. 
and Archbishop Bancroft, the number being variously 
estimated at from three hundred to forty-nine. 3 In the very 
beginning of this reign, persecutions of the Papists were re- 
newed with rigor. 1 Jas. I., c. 4, 1603-4, decreed new 
penalties against recusants, and forbade them to educate 
their children according to their religious faith. The admin- 
istration of the laws was made exceedingly severe. The 
jails were filled, and a few men were put to death. 4 " Re- 
cusants in the middle classes of life were ground to the dust 
by repeated forfeitures." In Hereford county alone " four 
hundred and nine families suddenly found themselves re- 
duced to a state of beggary." 5 Under Archbishop Laud, 
prosecutions for non-conformity were renewed with great 
severity. Those who objected to " his novel ceremonies," 
or dared to preach on the Calvinistic side, were " harassed 
by the High Commission Court as if they had been actual 
schismatics." 6 Thirty of the " precise " or puritanical clergy 
were excommunicated and deprived in the single diocese of 
Norwich for refusing to read in their churches a proclamation 
called the " Book of Sports." This was enforced as a test of 
Puritanism throughout all England, and several hundred 
Englishmen about this time exiled themselves to the coast of 
Massachusetts to be free from persecution and serve God in 
a savage land. 7 On the other hand, Charles I. favored his 

1 Hallam, ii, 98. 2 Neal, ii, 244-6. 3 Hallam, i, 394. 

* 7 Jas. I., c. 6, 1 609- 10; Hallam, i, 405; Lingard, ix, 41, 55. 

5 Lingard, ix, 41, 53-6. 6 Hallam, ii, 55; Neal, ii, 236-9. 
7 Neal, ii, 228. 



England under the Stuarts 237 

Roman Catholic subjects, " winked at the domestic exercise 
of the Catholic religion," and did not enforce the fines and 
imprisonments for recusancy which the laws demanded. 
Only one Romish priest was executed before 1640, and the 
number of Romanists pardoned during the first sixteen years 
of Charles' reign is said to have been 11,970 in but twenty- 
nine counties. The large and increasing number of converts 
to the Romish faith — some of them men and women high in 
royal favor — excited great alarm throughout the nation. 
Clarendon tells us that "they (the Papists) were looked 
upon as good subjects at court, and as good neighbours in 
the country ; all the restraints and reproaches of former 
times being forgotten." Evidently Romanism was not a 
crime in this reign. 1 

When the Puritans came into power, Parliament subscribed 
the covenant, and a severe persecution of the Anglican Epis- 
copalians followed. The private estates of all clergy who 
had helped King Charles were confiscated by an ordinance 
of April 1, 1643. But when the Covenant was imposed as a 
test of conformity to Presbyterianism and the established 
government, about 1600 beneficed ministers, probably more 
than one-fifth of all in the kingdom, were ejected from their 
churches for refusing to sign it. The Puritans made a large 
variety of sports criminal : such as wrestling, shooting, bowl- 
ing, ringing of bells for pleasure, masks, wakes, church-ale, 
games, dancing or other pastime. All persons were forbid- 
den to be present at such on the Lord's day, under heavy 
penalties. 2 

Cromwell seems to have desired the establishment of re- 
ligious liberty, but the English nation was not yet ready for 

Clarendon, i, lib and 142 for Sec'y Windebank releasing papists; Neal, ii, 
226; Hallam, ii, 58 and 66-7. There were from 250 to 360 Jesuit priests in Eng- 
land, 180 other regulars, and five or six hundred secular priests. Hallam, ii, 61. 

2 Traill, iv, 167. 



238 Religious Persecution 

so radical a change, and after the Restoration, Parliament 
reached a height of religious intolerance never seen before 
nor since in England; as the Corporation Act of 1661, the 
Act of Uniformity, 1662, the Conventicle Act, 1664, and the 
Five-Mile Act, 1665, abundantly prove. The Act of Uni- 
formity, 13 and 14 Car. II., c. iv, § 3, decreed that every 
beneficed minister, fellow of a college and even schoolmaster 
must unfeignedly agree to all the contents of the book of 
common prayer. About 2000 Presbyterian clergymen were 
deprived for non-compliance with this act, on St. Barthole- 
mew's day, in the year 1662. 1 The act for suppressing sedi- 
tious conventicles punished attendance at such by three 
months imprisonment for the first offence, six months for 
the second, and seven years transportation for the third, " on 
conviction before a single justice of the peace." The gaols 
were soon filled with both ministers and laymen. 2 Statute 
17 Car. II., c. 2, known as the Five Mile Act, was horribly 
severe. By far the greater number of non-conformist clergy 
refused to take the subscribed oath, and were driven from 
their homes into the wilderness. 3 

Twelve years after this date, in 1677, capital punishment 
for heretics was abolished by law. Apparently the English 
people were beginning to tire of religieus persecution. But 
regarding the original social necessity or great usefulness of 
punishing sins and non-conformity as crimes, Stephen 
writes : " If scepticism had been accepted as a basis of legis- 
lation, say at and after the barbarian conquests, it is difficult 
to see how western Europe could ever have ceased to be 
barbarous. Or, if the same view had prevailed in the 15th, 
1 6th and 17th centuiies, it is difficult to see how the oppres- 
sions of the clergy could ever have been removed." 4 

Turning from religious offences back to political and other 

1 Neal, iv, 326 and 335 ; Baxter, Life, part 2. p. 384. ' Hallam, ii, 347. 

1 Hallam, ii, 351. * Stephen, ii. 



England under the Stuarts 239 

crimes, it appears that during the civil war "the gown had 
to yield to the sword, and the laws were comparatively silent 
in the midst of arms." 1 Under Cromwell, military despot- 
ism overrode the common law. Rebellion among the people 
and the resistance of Parliament to his authority compelled 
such action, yet, on the whole, the country was wisely, if 
despotically, governed. The kingdom was divided into 
eleven districts, and over each was placed a colonel or 
major-general 2 "bitterly hostile to the royalist party and in- 
solent towards all civil authority." How many criminals 
(probably mostly political and religious) were punished by 
these military judges we have no means of knowing; but 
proceedings at common law were frequently interrupted, 3 
and for all men alike the times were "troublesome" and 
" distracted." « 

Charles II returned to his throne amid the joyful acclama- 
tions of his people. The declaration from Breda gave a free 
and general pardon "to all his subjects" not specially 
"excepted by Parliament;" but this boasted forgiveness 
amounted to very little in practice. Thirteen of the regi- 
cides were put to death. 5 Sir Henry Vane was executed on 
a charge of high treason, in violation of the king's promise, 
and a straining of the law. 6 Colonel Hutchinson died in 
prison, and many other officers of the old army were illegally 
incarcerated for years — Wildman, Creed and others. The 
law of high treason was made more strict during the king's 
lifetime, 7 and the State Trials bear ample witness to the utter 
brutality and hateful partiality of the royal judges, Scroggs, 
North and Jones, during this reign. " Never," writes Hallam, 

1 Hamilton, p. 127. » Thurloe, iii, 701. 

5 Thurloe, iii, 78, 265, 296-7, 359-60, 568. 

4 For instances of Cromwell's arbitrary government and violations of law, see 
case of Maynard,Twisden and Wyndham, sent to the Tower; Gerard and Vowel, 
executed in 1654; Slingsby and Hewet in 1658. State Trials, v, 518, 871, 883. 

* State Trials, v,947. 6 Ibid., v'\ 120. T 13 Car. II., c. 1, 1661. 



240 Religious Toleration 

"were our tribunals so disgraced." 1 Yet the Court of Star 
Chamber and its branches, swept away in 1640, were not re- 
stored, and "the Ecclesiastical Courts were reduced to a 
dignified impotence." 2 The practice of rebuking, fining 
and imprisoning jurors for returning verdicts against the 
direction of the court was given up and declared illegal. 
English common law was virtually completed, and since the 
Restoration the adapting of law to the growing needs of 
society has been mainly the work of Parliament and the 
Courts of Equity. 3 

The brief reign of James II is notable for his arbitrary re- 
assumption of despotic power to accomplish his great desire, 
the restoration of the Roman Catholic religion. 4 His intem- 
perate zeal soon united the majority of Englishmen against 
him, and on the prosecution and acquittal of the bishops 
(June, 1688), 5 the Anglican clergy finally renounced their 
doctrine of passive obedience to royalty, and strongly sup- 
ported the popular movement before which James fled. 

With William and Mary England entered upon a great 
period of reform, both in the policy of government and in 
the social life of the people. The first step taken was the 
establishment of legal toleration for Protestant non-conform- 
ists. Although Papists were expressly excluded, there were 
almost no more persons punished for their religious beliefs 
and observances. 6 Religious crimes practically disappeared 
and political offences rapidly decreased. 7 A few new 

1 Hallam, ii, 423. 

2 Traill, iv, 362. For evidence of the early usefulness of these despotic courts, 
see the resentment shown by Yorkshire men over the suppression of the Council 
of the North, which had proved itself "a bridle on the stout nobles." Traill, iv, 
222. 

3 Traill, iv, 363. 

* State Trials, xi, 1 31 5. Proceedings against the Univ, of Cambridge. 

5 Ibid., xii, 183. 6 Stephen, ii, 492, and Hamilton, pp. 253 and 258. 

7 State Trials, xii. 



England tinder the Stuarts 241 

treason statutes were enacted, but these were in their nature 
essentially temporary, though necessary safeguards of the 
new social life. Thus, in 1698, by 9 Will. III., c. I, it was 
made treason for the followers of James II. to return to Eng- 
land without special license; and in 1 701, by 12 and 13 Will. 
III., c. 3, corresponding with " the pretended Prince of 
Wales " was declared treason. In Queen Anne's reign there 
were several similar acts. 1 

But in the sweeping away of this great mass of political and 
religious offences, crimes did not cease. Criminal punish- 
ments were merely transferred from the field of religion and 
politics, to be used against conduct which had largely ceased 
to be criminal since the restoration of the house of Stuart. 2 
William and Mary strongly urged the enforcement of laws 
against swearing, immorality, drunkenness, and other lewd 
and disorderly practices which had universally spread them- 
selves by neglect or connivance of the magistrates. But, on 
the whole, it was from the people, rather than from govern- 
ment, that the movement for social purification came. Vol- 
untary associations of citizens took up the work. Five hun- 
dred disorderly houses were suppressed in London alone 
before 1699, and the movement showed extraordinary suc- 
cess elsewhere. 3 

Religious and political crimes, and the enforcement of 
penalties against them by courts of extraordinary jurisdic- 
tion, have filled most of this chapter; but there were other 
criminal tribunals, ordinary courts of common law, which 
though much weakened and tyrannized over by a centralized 
administration of justice, by military despots and dictatorial 
judges, yet continued to hold sessions and decree punish- 
ments. These will now be considered, but unfortunately the 

1 1 Anne, c. 17, 1702; 3 and 4 Anne, c. 14, 1705; 4 Anne, c. 8, 1705; 6 Anne, 
c. 7, 1709; 7 Anne, c. 4, 1709. 

1 See 4 Will, and Mary, c. 8. * Traill, iv, 593-4. 



242 Courts of Common Law 

records that have come down to us are very incomplete. 
The best evidence is furnished by the records of the Court 
of Quarter Sessions preserved at Exeter Castle, for the 
county of Devon, and the records of the neighboring county 
of Bucks. 

In the records of Quarter Sessions during the reign of 
James I. there is much evidence of the corruption and extor- 
tion practised by all ranks and degrees of officials. Charges 
were frequently " preferred and proved " against constables 
and rate-collectors, bailiffs, "clerks of the market," and 
other similar persons ; and the justices even sent 4 letter to 
the Chief Justice, in 1604, requesting that one Collacott be 
made an example of for his notorious corrupt practices ; but 
nothing is said as to the actual infliction of punishment on 
these offenders — a very significant silence. On the other 
hand, directions for more strictness in prosecuting recusants 
arrived from the council of the king, and convictions became 
very frequent. 1 Men were committed to prison for baptizing 
a mare and a dog, and other petty offences and sins. The 
game laws also appear to have been quite strictly enforced. 2 
The penalty for drunkenness was five shillings, " at which it 
remained until our own times;" but this fine did not prevent, 
and was probably not much enforced, for intoxication was 
disgustingly customary, even at the royal court. Vagrants 
fairly swarmed in England during the first quarter of the 
17th century. The justices neglected to enforce the laws for 
branding them, nor were the people willing to lay informa- 
tion against them. Evidently neither vagrancy nor drunk- 
enness can be considered crimes in that age, for society 
refused to inflict punishment. Under Charles I. we find 
frequent sentences to the pillory for " cozening the people 
by telling fortunes." 3 Witchcraft, charm and sorcery were 
punished by a year's imprisonment. Humphrey Moore, for 

1 Hamilton, pp. 74-5. a Ibid., pp. 89 and ill. * Ibid., p. 113. 



England under the Stuarts 243 

" being a very lewd and dangerous fellow" and for " false 
accusation," was sent to the House of Correction. Those 
who attended "revels, maypoles and the like" were to be 
punished as " idle and lewd people." Most of the offences 
punished by Quarter Sessions during the reigns of the first 
two Stuart kings were very insignificant, showing how large 
a proportion of the serious crimes was drawn into the juris- 
diction of higher courts. There were many complaints of 
outrages by soldiers quartered In the country, but no pun- 
ishments could be inflicted. 1 At the winter Assizes of 1630 
there was an extraordinarily long calendar of prisoners, and 
seventeen of them were hanged, but this can be accounted 
for by the prevalent distress, caused by dearth and the high 
price of food. It is evidently not a customary number of 
criminals. During the civil war " the justices were out a 
colonelling," and legal business was almost at a standstill. 

Under the Commonwealth most of the cases tried at 
Quarter Sessions related to petty sins. There are "literally 
hundreds of such indictments of this period" for the single 
county of Devon. 2 As the cavalier poet sang: 

■ Those gospel-walking times, 

When slightest sins are greatest crimes." 

Swearing was a crime very strictly punished. Every oath 
was counted. A single specimen was fined 6s. 8d., but the 
charge was reduced to 3s. 4d. for a quantity. Among the 
"oaths" thus fined were "upon my life;" "on my troth;" 
saying "God's life" in conversation, and "God is my wit- 
ness," in court. 3 By a Devonshire order we learn that every 
woman who had ever borne an illegitimate child and remained 
unpunished, was to be committed for trial. The sentence 
was generally three months' imprisonment, but sometimes 

1 Hamilton, p. 114. * Ibid., p. 159. 

1 For Sabbath breaking and many other offences, see Hamilton, pp. 153-162. 



244 Petty Sins as Misdemeanors 

"to be whipt." Twenty-two such cases are on record for a 
single sessions. 1 The laws against sturdy beggars, rogues 
and vagabonds, remained, however, unenforced. The death 
penalty was decreed against adulterers, but there was great 
partiality in prosecuting. Less than 5 per cent, of those in- 
dicted in Devonshire were males. Fines of from £5 to ^500 
were inflicted for " traitorous words " against the Lord Pro- 
tector. 2 Deducting the petty sins punished as misdemeanors, 
by fine and imprisonment, the calendars of Quarter Sessions 
are decidedly short; but we do not know how many offend- 
ers were disposed of by the Judges of Assize and by the 
Major Generals. 

Entries in the Devonshire records during the reign of 
Charles II. relate chiefly to the persecution of Protestant 
non-conformists, and to the imposition of the hearth tax.3 
Intolerance seems to have been the essential qualification 
for a justice of the peace in those days. Epitaphs of the 
time, relating the virtues of the deceased, tell how he was 
" Ecclesiae Anglicanae, vindex acerrimus." The records of 
Quarter Sessions do not show how many were punished for 
their religion by imprisonment and transportation, for when 
such penalties were inflicted, the nature of the offence was 
rarely mentioned. But one-third of all the fines, imposed 
for non-conformity, had to be paid in at Quarter Sessions, 
and some record of accounts collected has thus come down 
to us. In Devonshire, 1665, but one case is mentioned: 
Roger Murkle, attending conventicle, fined "xs.," and on 
refusal to pay, committed for one month. In the strongly 
Protestant county of Bucks" (from 1678 to 1682) there were 
many indictments against Popish recusants, and about 1682 
many scores of Protestant " absenters from church " were 

1 Hamilton, p. 160. 

1 See cases of James Nynoe, Mary Farye, and John Hinxlie. 

» Hamilton, pp. 173, 177-200. 



England under the Stuarts 245 

indicted, but very many of the offenders, both Papists and 
Protestants, were not arrested. 1 Thieves, wandering peddlers 
and other small offenders were publicly whipped in Bucks, 
and sometimes the penalty was worse than the crime. 

Under James II. the business of Quarter Sessions con- 
tinued much the same. The justices dealt for the most part 
with petty offences, gaming, vagabondage, etc., and there 
were but few punishments inflicted. 2 After the Monmouth 
rebellion (1685), there was renewed prosecution of non- 
conformists, and several ministers were executed, 3 but Judge 
Jeffries had visited Exeter in 1685 an d "left little work for 
the county (Devon) justices to do," except for the high 
sheriff, who cared for the hanging and quartering of the 
rebels. 4 Twenty-six rebels were executed in Devonshire, 
and at least 233 in the county of Somerset; while 400 were 
condemned at Taunton and 700 at Wells, in the " Bloody 
Assizes." Whipping and transportation was the punishment 
for most. 

After the coronation of William and Mary there were no 
further persecutions for conscience sake in Devonshire, but 
in Bucks "Popish recusants" continued to be presented for 
trial, although not in very large numbers. Some gentlemen 
were sentenced but not punished. In 1 69 1, thirty Papists 
were fined from £20 to £40 each. A new act against 
swearing and other disorderly practices (1695) was strictly 
enforced in Bucks (1697-8). The fine per oath was 2 s., 
but 4 s. if the man was convicted a second time. 

Under Queen Anne, the business of Quarter Sessions 
(Devonshire) was strictly local, confined to the old familiar 

1 Hamilton, p. 222. 

1 Mr. Northmore, assistant deputy sheriff of Devon, writes to the sheriff, just 
before the Monmouth rebellion, " here hath been very little or no business;" in 
other words, very few hangings, etc. 

1 Richard Evans, Mr. Vincent, and Mr. Robert Wolcombe. See Hamilton, p. 
241. * Ibid., p. 227. 



246 Few Statutes Enacted 

routine work. There were constant orders against vagrants, 
which the constables neglected to enforce. 1 Paupers in this 
reign are said to have numbered nearly one-fifth of the pop- 
ulation ; but it is impossible to regard them as criminals, de- 
spite the many penal statutes against them. Gaol fever and 
slow starvation rid the land of many of its prisoners, but few 
of these prisoners were vagrants. 2 

The reader may possibly have noticed how few statutory 
additions to the criminal law have been mentioned in this 
chapter. The explanation is that few such statutes were 
enacted. " Criminal law," writes Stephen, " varied little 
from the time of Elizabeth to the end of the 17th century." 3 
After each revolution the party in power supported its 
government by decreeing the pains and penalties of high 
treason against its adversaries ; but every government that 
comes by force must do this in self-defence. The Statute 
of Stabbing, 1 Jas. I., c. 8, 1603-4, was probably intended 
to restrain the frequently fatal affrays between Englishmen 
and the Scotchmen who had followed James to London. 
The utter indifference of society in that age to crimes of 
violence against the person, especially when death did not 
result, is truly astounding. Stephen believes that as late as 
1603 "a person who killed another on the sudden, even 
without provocation, or on any slight provocation, was guilty 
of manslaughter only. 4 In 1679, when Giles and several 
others did their best to assassinate Arnold, stabbing and cut- 
ting him dangerously in many places, the hardest sentence 
the judges could inflict under the laws was fine, imprison- 
ment and pillory. This great defect in English law has been 

1 Hamilton, p. 268-9. ■ 

2 At the end of the seventeenth century the population of England was 
5,500,520. See Traill, ii, 394. 

8 Stephen, i, 466. 

4 See evidence furnished by this same Act : 1 Jas. I., c. 8; and Stephen, iii, 48. 



England tender the Stuarts 247 

gradually remedied, and two of the earliest statutes in this 
direction were 22 and 23 Chas. II., c. 1, § 6, 1 670-1, and 
9 Anne, c. 16. Fraudulent bankruptcy was first punished 
with any severity by 21 Jas. I., c. 19, § 6, 1623-4. The 
penalty was pillory for two hours and the loss of one ear. 
The expansion of trade and the greatly increased use of 
credit led to the passing of this act, and also the important 
Statute of Frauds, in the reign of Charles II. Obtaining pro- 
perty by false pretences was not made a statutory misde- 
meanor until the 18th century. 1 James I.,c. 7, § 3, 1603-4 
added branding for rogues and vagabonds, to the whipping 
and imprisonment commanded by 39 Eliz., c. 4, § 3 ; and 
a number of severe game laws were enacted in 1604, 1609, 
1670 and 1706. 1 n Will. III., c. 7, shows the inefficiency 
of the old statutes against piracy, states that offenders had 
very much increased, and proceeds to harden the law against 
them ; but it was long before they were punished to any ex- 
tent. New forms of crime, well known in modern days, 
greet us in 8 and 9 Will. III., c. 32, 1697: an Act "to re- 
strain the number and ill-practice of brokers and stock job- 
bers;" 2 and in 9 Anne, c. 30: "For desolving the pres- 
ent and preventing the future combination of coal owners, 
leightormen, masters of ships and others to advance the price 
of coal." The penalties were fines from ^"20 to £100, part 
going to the person suing. This statute was made perpetual 
by 1 Geo. I., Stat. 2, c. 26, and was evidently deemed socially 
necessary. 

Summary. — Two bitterly antagonistic political and relig- 
ious parties were striving to develop English national life in 
opposite and contradictory directions throughout the seven- 
teenth century. Growth in either direction was mainly 
political and religious. The new social prohibitions, created 

1 See Statutes of the Realm. 

* Several other acts against these evils soon follewed. 



J 



248 Political and Religious Crimes 

during this century, were likewise political or religious, in 
essence or in application, and necessary social weapons of 
the times. History reveals a very large amount of serious 
criminality, political and religious, other forms of crime be- 
ing relatively infrequent. Crime was evidently taking the 
direction of greatest resistance to the new life of society, 
although that life was, for the time being, double-headed. 






CHAPTER XI 

Modern England. 

THE history of seventeenth-century England, that bitter 
century of civil strife, closes with a double compromise — in 
religion, toleration ; in politics, a limited monarchy. A 
despotic and persecuting Church, whether Anglican or 
Presbyterian; the divine right of an absolute king; the 
military tyranny which was the practical outcome of a vision 
of democracy; all these ideas are of the past and the result 
is peace. England, alone, of all the great European nations, 
wanted no continental dominions. She was forced, against 
her will, into the Protestant League against France, by the 
support that nation gave to the exiled James. But after the 
Peace of Utrecht, England was made the special guardian 
of that peace, and it was largely through the efforts of 
Georgian statesmen that the next twenty-five years of 
European history were, on the whole, peaceful years. No 
doubt their aims were essentially selfish, but these led 
them to guard the throne of the Revolution and all that 
meant to England. They struggled for peace abroad and 
for the sanctity of treaties, they struggled for peace at home 
and for the maintenance of their own power, and they were 
successful. Since the revolution of 1688, the internal peace 
of England has continued practically unbroken. 1 Parlia- 

1 The brief Jacobite risings of 1 715 and 1745 were crushed in Scotland. Many 
of the leaders in these rebellions were tried and condemned for treason, but only 
fire were executed. In 1715 nearly 1300 rebels were imprisoned, but not more 
than 28 put to death, while 29 were transported for seven years. After Culloden 
military vengeance was let loose upon the fugitives. In 1803 Colonel Despard 
and six accomplices were executed for treason; and modern instances of treason 

(249) 



250 Peace mid Co7'ruptio7i 

ment has assembled every year and its deliberate wishes 
have been obeyed. Legal changes have come to be more 
and more the result of statutes. 

Under Walpole's long ministry (1721 to 1742), cabinet 
government was firmly established, and the sovereign lost 
the right of veto, which has never been exercised since the 
reign of Anne. The continued rule of peace was most ad- 
vantageous for the nation, and secured a great material 
development which carried England triumphantly through 
the European wars of the century. But to maintain himself 
in power, Walpole established an " organized system " of 
parliamentary bribery. Corruption f became open and 
utterly shameless. Horace Walpole publicly boasted of his 
father's great and statesman-like use of public money, called 
" secret service money," for bribes ; x while the bursting of 
the South Sea Bubble disclosed great frauds and widespread 
corruption of members of the Lords and Commons. 2 Self- 

by levying war are insurrections, such as those of Frost, 1840; Smith O'Brien, 
1848; and the Fenians, 1867. The crime of treason, once so fearfully common, 
has almost ceased to be upon the soil of England. The last statute upon this 
subject was (11 and 12 Vic, c. 12), 1848, which reduced many old treasons to the 
rank of felony. This law has been enforced several times. 

1 H. Walpole, i, 204, 320, 332; Doddington's Diary (15 March, 1754), p. 
240-1. 

2 Bribery at parliamentary elections is said (Hawkins, i, 415), and see 12 
Ric. II., c. 2, and 5 and 6 Edw. VI., c. 16, to have been punishable at common 
law, but this seems doubtful. See Stephen, iii, 252. The first statute directed 
against this offence was 2 Geo. II., c. 24, 1729. Section 7 imposed a fine of 
^500 upon " every voter who asked, received or took any money or other reward," 
and every person who bribed any other to vote ©r to abstain from voting. This 
law left unpunished " all payments for having voted and all corrupt practises, ex- 
cept giving or promising money or other rewards, and all gifts to other persons 
than voters;" yet it remained unaltered for eighty years. See Stephen, iii, 255. 
Acts 49 Geo. III., c. 118, 1809, and 5 and 6 Vic, c 102, § 20, 1842, remedied 
these defects. 17 and 18 Vic, c 102, 1854, is the law now in force, and makes 
bribery a misdemeanor. 35 and 36 Vic, c 60, 1872, extends this law to cover 
municipal elections. It is safe to say that these forms of bribery were not made 
crimes by the enforcement of punishments until well on into the nineteenth cen- 
tury. See Preamble to 5 and 6 Vic, c. 102, 1842. 



Modem England 251 

love and a cynical contempt of mankind took possession of 
the higher classes, and this same spirit showed itself among 
the masses in increasing lawlessness and admiration of suc- 
cessful criminals. 1 Coaches were plundered in broad day- 
light every day for weeks together. The mail from Bristol 
to London was robbed five times in as many weeks. Thefts, 
foot-padding, and street assaults were every-day affairs, 
and <4 the newspapers were full of lists of ' lost,' that is, 
stolen property, and of accounts of the insecurity of the 
streets." 2 People believed that highway robbery was a 
special evil of their own times, and Luttrell's Diary, and 
other writings of the latter seventeenth and early eighteenth 
centuries, show its alarming prevalence. Luttrell's six 
volumes are simply filled with accounts of highwaymen, 
executions, etc. Thus an entry for December 22d and 23d, 
1690, reads: "The 22d, thirteen persons were executed at 
Tyburn for several crimes; as also a woman at Newgate, 
and a notorious highwayman in Fleetstreet." " The 23d, 
Sir John Jonston, condemned for stealing Mrs. Wharton, 
went up in a mourning coach to Tyburn, and was executed 
for the same." 3 Yet the highwaymen, hanged at Tyburn, 
were but humble imitators of robber knights and successful 
men of old who loved brigandage and rapine, and often 
lived by such, but nevertheless were not criminals. 4 

There was undoubtedly a strong outcry in the eighteenth 
century over the terrible increase of crime. The whole 
structure of society was said to be disintegrating. But his- 
tory shows this cry very often repeated. We have heard the 
same in our own day. Doubtless there was and is some 

1 See stories of Jack Sheppard, burglar, hanged 1724; Jonathan Wild, king of 
thieves and receiver of stolen goods, hanged 1725; Dick Turpin, highwayman, 
hanged 1739. 

* Traill, v, 145. 

■ Luttrell, ii, 147-8. 4 See Reign of Stephen. 



252 History of Forcible Entry 

element of truth in this idea, though it is but a half truth, 
and needs careful winnowing. There seems, however, to be 
good historic evidence that murder, robbery and theft had 
diminished rather than increased in England, if we compare 
the eighteenth century with earlier years. 

This is well illustrated by the history of " forcible entry." 
Very slowly indeed the idea of private property in land pre- 
vailed over the old savage notion that " might makes right:" 

" The good old rule, the simple plan, 
That they should take who have the power, 
And they should keep who can." 1 

In a Roll for the twelfth year of William III. (1700), " no less 
than eleven cases of violent seizure or detention of land are 
mentioned. A century and a half earlier it would have 
seemed impossible that the number could in any year have 
been brought so low ; a century and a half later the thought 
of asserting a claim to a manor by force would hardly have 
occurred to any one but a madman." 2 " Forcible entry 
was practically extinct before the first half of the eighteenth 
century was completed, and has never been revived in its 
ancient form." 3 Here we have three stages in the develop- 
ment of forcible entry. For many centuries it was certainly 
not a crime. A man's own strong right arm must defend 
his property, or revenge him on those who seized it, in private 
war. Slowly the law came to his aid. Early statutes treat 
forcible entry, for the most part, as a tort, with double or 
treble damages to the party grieved, and the possibility of 
fine, ransom, or a year's imprisonment, at the pleasure of 
the king. Generally, the rightful owner of the property and 

1 Wordsworth. 

2 Pike, ii, 259 et seq., for abundant evidence of the prevalence of such seizures, 
and note also the old saying, " Possession is nine points of the law." 

5 Pike, ii, 260. For early statutes against, see (5 Ric. II., Stat. 1, c. 7), (4 Hen. 
IV., c.4), (8 Hen. VI., c. 9) and also laws of Hen. VIII., Eliz., and Jas. I. 



Modern England 253 

his friends were expected at least to help, by force of arms, 
in the ejection of his enemy. By the eighteenth century, 
forcible entry had become a crime against the state, and 
with advancing civilization, the laws have been successfully 
enforced, and this form of crime has ceased to exist. 

In the year 1348 (not at all an anarchic period of English 
history), the coroners' inquests for Yorkshire return eighty- 
eight verdicts of " felonious homicide," all relating to grown 
persons. At that time Yorkshire could not have had more 
than one-eighth or one-tenth of its present population, and 
Pike concludes, from his investigation of these and other 
coroners' inquests, that murders in the middle of the four- 
teenth century were at least sixteen to eighteen times as 
frequent as in our own day. 1 " The farther back we look," 
writes Pike, " the more theft, robbery and homicide we 
find," and in the eighteenth century there were no more 
such evil acts than usual. 2 But such acts were at first not 
crimes at all, but torts, or mere misfortunes. The moral 
intelligence of the nation regarded them in an entirely differ- 
ent light from what it does to-day. Slowly developed into 
crimes as society became wiser and stronger, such actions 
again ceased to be punished as crimes, and were considered 
most natural and even honorable with each relapse into com- 
parative anarchy, as in the reign of Stephen, or among the 
turbulent nobility of the fifteenth century. 

How then account for the strong popular belief in the in- 
crease of crime early in the eighteenth century? The nation 
had just passed through ninety years of turmoil, suffering 
and violence, and the evils bred in those dark days naturally 
expressed themselves in later lawlessness, increased no 
doubt by the prevalent selfishness and cynical disregard of 

1 As late as 1600 the population of Yorkshire did not exceed one-sixth what it 
was in 1873, when Pike's History of Crime in England wz.% written. See ii, 468. 
■ Ibid., ii, 339 and 370. 



V 



254 Capital Offe7ices Multiplied 

virtue and honest dealing. There is no denying that crimes 
of violence were very numerous. But newspapers were just 
securing a wide circulation, and it i« most probable that 
" the popular outcry about the increase of crime was to a 
large extent the work of news writers." x When we consider 
the era of peace introduced by the bloodless revolution of 
1688, the popular crusade against vice which immediately 
succeeded it, the enlarging business interests of the nation, 
the increase of wealth and of quiet happiness in country 
homes, is it not most probable that people placed a higher 
value than formerly on the security of life and property, and 
were more alarmed and incensed by acts of criminal violence 
at a time when newspapers were bringing the frequency of 
such misdeeds more glaringly before their eyes? The result 
would naturally, almost inevitably, be a demand for increased 
severity of penal laws and a firm enforcement of their penal- 
ties, and this is what we find. The English were resolved 
these actions should be serious crimes in fact as well as on 
the paper of the statute books. Accordingly, after some 
experience in the blessings of peace and security came the 
severer punishment of peace-breakers. The new internal 
peace was safeguarded by the creation of a multitude of 
felonies punished with death without benefit of clergy. 
" From the Restoration to the death of George III. — a per- 
iod of 160 years — no less than 187 capital offences were 
added to the criminal code," 2 and between 1760 and 18 10 
sixty-three statutes decreed new capital crimes. The death 
penalty was inflicted for even the most petty offences, as 
for example, stealing in a shop to the value of five shillings, 
stealing from a dwelling house, or on shipboard to forty 
shillings. As Mr. Burke sarcastically observed : " If a 
country gentleman can obtain no other favor from govern- 
ment, he is sure to be accommodated with a new felony 

1 Traill, v, 351. * May, ii, 552. 



Modern England 255 

without benefit of clergy." Paley justified this extreme 
severity to all grades of criminals by "the necessity of pre- 
venting the repetition of the offence." 1 In 1798, offences 
committed on the high seas were for the first time declared 
equally criminal with the same acts on shore. 

For years these terrible statutes were very largely 
enforced. Men were hanged at Tyburn, every Monday, by 
the dozen and the score, and many thousands were trans- 
ported to the colonies in America and Australia, in commu- 
tation of the death penalty. Between 1787 and 1857, no 
less than 108.715 criminals were thus shipped off to Aus- 
tralia. This was the ordinary punishment for felons, under 
sentence of death, 3 but the Capital Punishments Society 
reported, in 1845, that more than 1400 people had suffered 
death between 18 10 and 1845, * or crimes since then no 
longer capital ; ? and this was long after the revolt against 
such cruel punishments was under full headway. Official 
Accounts and Papers, Vol. 22, 1822, give the number of 
convicts sent out of the United Kingdom from January, 
1 8 16, to January, 1822, as 16,373. The numbers by years 
are as follows : 



1816. 


1817. 


1818. 


1819, 


1820. 


1821. 


1822. 


1441 


2228 


2986 


3163 


3630 


2639 


286 



The Statistics of Prisons in the same volume bear witness 
to the increased criminality and increased social pressure 
against evil-doers, during the early years of the nineteenth 
century. It gives " an account of the number of persons 
committed to the different prisons in England and Wales for 
trial at the assizes and sessions held for the several counties, 
cities, towns and liberties therein." Signed " H. Hobhouse, 
Whitehall, 20th May, 1822." 

1 See Paley, Moral and Political Philosophy, book vi, chap, ix. Quoted in 
May, ii, 554. 

2 Pike, ii. » Report of 1845 '• 



256 Crimes against the Person 

Year 1811. 1812. 1813. 1814. 1815. 1816. 1817. 1818. 1819. 1820. 1821. 

No. of persons. 5337 6576 7164 6390 7818 9091 13932$ 13567 14254 13710 13115 

Crimes Against the Person. The extraordinary lenity 
shown by the English for even the worst and grossest 
offences against the person continued till the beginning of 
the nineteenth century. The Coventry Act had made it 
felony to cut with intent to disfigure. In 1722, the Black 
Act, 9 Geo. I., c. 22, made it felony " wilfully and 
maliciously to shoot at any person." 11 Geo. II., c. 22, 
and a later statute punished wounding " with intent to 
hinder the export of corn," and wounding seamen in the 
ordinary discharge of their business. But the first general 
act on this subject was 43 Geo. III., c. 58, 1803, Lord 
Ellenborough's act. This statute has 79 sections and " is 
as elaborate and complete as the early law was crude and 
imperfect." * The death penalty was decreed against all 
desperate assaults upon the person, including worst attempts 
to commit murder. Hitherto such attempts were not 
regarded as serious crimes. At most they could be pun- 
ished only as misdemeanors at common law, with pillory, 
fine and brief imprisonment. 2 9 Geo. IV., c. 31, §11, 
added attempts to drown, suffocate or strangle, to the capi- 
tal felonies punished under the act of 1803. And it was 
again greatly extended by 24 and 25 Vic, c. 100, 1861, 
which is the law now in force. By 7 Will., 4 and 1 Vic, 
c. 85^ the death penalty was restricted to attempts to 
murder by poisoning, stabbing, cutting or wounding with 
that intent, and in 1861 these also were made non-capital 
crimes. Evidently, in this peaceful nineteenth century, 
England has been very earnestly engaged in turning injuries 
to the person into serious crimes. 

Malicious Injuries to Property. The history of malicious 
injuries to property shows how great a number of actions 

1 Stephen, iii, 113. 2 Ibid., iii, 114 and 116. 



Modern England 257 

have been made criminal since the thirteenth century, as 
particular forms of mischief became noticeably harmful to 
society. But one offence of this kind was known to the 
common law, arson ("bernet"). Special statutes have 
been passed from time to time through the centuries, mak- 
ing other malicious injuries criminal. The first such was 
the Statute of Westminster, 13 Edw. I., Stat. I, c. 46, and 
relates to the throwing down of enclosures. Certain in- 
juries to trees and a few other things were punished by 
statutes in the reigns of Henry VIII. 1 and Charles II., and 
the wilful destruction of ships was declared criminal by 22 
and 23 Chas. II., c. 11, § 12, and 1 Anne Stat, 2, c. 9; but 
there was exceedingly little legislation of this kind until the 
reign of George I. The Black Act of 1722, (9 Geo. I., c. 
22), punished with death malicious injuries to trees, cattle, 
fish ponds, hay stacks, etc. — offences much the same as 
those punished by Henry VIII. with a fine of £\o. Many 
statutes of George II. and George III. decreed death for 
malicious conduct, hitherto unpunished. 2 Even the cutting 
of hop-binds growing on poles in a hop plantation was thus 
punished, during the eighteenth century. 7 and 8 Geo # 
IV , c. 27, repealed and consolidated a very large number 
of these special statutes, and was re-enacted by 24 and 25 
Vic, c. 97, the law now in force. The most important new 
crimes of this class added during the nineteenth century, 
come under the head of malicious injuries to railways, tele- 
graph and telephone lines Punishments have become 
much less severe, and the death penalty has been entirely 
abolished. 

Piracy was not a crime at the beginning of the eighteenth 
century, for it was not punished to any extent, and success- 
ful pirates were greatly admired by the lower classes. 

37 Hen. VIII., c. 6. 
See 3 Statutes of Geo I.; 5 Statutes of Geo II.; 11 Statutes of Geo. III. 



258 Reaction against Severe Laws 

Pirates and privateersmen were much confused in the public 
mind. Many prominent nobles united in a business ven- 
ture, fitting out the pirate Kidd to catch other pirates; 
instead of which work he preferred to rob merchantmen. 1 
Wrecking was made a capital offence by 26 Geo. II., c. 
19, and piracy was at last extinguished as a profession and, 
with wrecking, became punished as a crime, by the close of 
the eighteenth century. 2 

The terrible severity of the eighteenth and early nine- 
teenth century laws doubtless freed England from a large 
amount of very undesirable criminal stock, but it made the 
land a human shambles, and wonted the people to thoughts 
and acts of violence and bloodshedding, thus fostering the 
very lawlessness which the punishments were intended to 
repress. Hanging seemed to many men an honorable death 
to die ; the march to the gibbet was often a triumphal pro- 
cession, and the weekly executions a free theatrical enter- 
tainment. Reaction came, for the wholesale executions and 
banishments did not seem to lessen crime. A more 
humane spirit was growing up within the nation, and it 
began to seem an awful thing to punish petty larceny with 
death. This spirit is plainly evident in the decreasing 
willingness to inflict the death penalty in the eighteenth 
century, and much more noticeably in the nineteenth. The 
proportion of capital convictions to executions in the home 
circuit, which included the counties of Hertz, Essex, Kent, 
Sussex and Surrey, from 1689 to 18 14, were as follows: 3 



Proportion of 


Convictions 


to 


Executions. 


1689 to 1718 


38 


to 


20 


1755 to 1784 


46 


to 


13 


1784 to 1814 


74 


to 


19 



1 Pike, ii, 263 and 268-9. * ^ id -> "> 37 1 - 

8 See evidence presented to the select committee for the investigation of capital 

punishment, 181 9. Selections in Annual Register, 1819-20, p. 338. The figures 

from 1 718 to 1755 were not given. 



Modern England 259 

The select committee for the investigation of capital pun- 
ishment (18 19) reported as follows concerning the three 
capital felonies : Privately stealing in a shop to the amount 
of five shillings ; Privately stealing in a dwelling house to 
forty shillings ; Privately stealing from vessels in a navigable 
river to forty shillings. " Numerous and respectable wit- 
nesses have borne testimony, for themselves and for the 
classes whom they represent, that a great reluctance pre- 
vails to prosecute, to give evidence and to convict, in the 
cases of the three last-mentioned offences, and that this 
reluctance has had the effect of producing impunity to such a 
degree that it may be considered as among the temptations 
to the commission of crimes." z Old professed thieves much 
preferred to be tried on a capital charge, from the greater 
chance of escape. 2 Some crimes, " not of atrocious nature," 
but punishable with death, were, so Judge P. Colquhoun be- 
lieved, "never brought under the review of magistrates at 
all." 3 Sometimes he had even been " obliged to threaten im- 
prisonment to prosecutors who had refused to enter into 
recognizance," so great was their reluctance to prosecute. 
Even when criminals were brought to trial, juries insisted 
on returning verdicts greatly under the value of property 
stolen, to avoid capital punishment. The public conscience 
was evidently in revolt against the infliction of the death 
penalty for such crimes as Colquhoun mentions: " Forgery, 
shop-lifting, larceny, burglary without entering the house, 
horse stealing, cattle stealing, sheep stealing, frame breaking, 
house breaking in the day time, highway robbery with acts 
of violence on the person, and various other minor offences." 4 
Right Hon. Sir A. Macdonald believed that " more offenders 

1 See Report, Annual Register (1819-20)^.342. This evidence was given 
largely by London traders, clerks and officers of criminal courts, magistrates, 
gaolers, etc., and " their testimony was perfectly uniform." 

2 Annua/ Register, p. 360. z Ibid., p. 355. *> Ibid., p. 355. 



260 Decrease in Murders 

escape justice from flaws and informalities in this country 
than in any other," and that " out of about two hundred and 
thirty felonies that exist by the present laws, it is seldom 
that more than from a dozen to twenty of them, when com- 
mitted, are capitally punished." * 

It may be doubted whether the enforcement of these 
ferocious laws during a large part of the eighteenth century 
really had the desired effect of reducing crime ; but at any 
rate the public mind at first believed in them and was not 
revolted by their cruelty. Statutes, hangings and transpor- 
tations evidence the increased public detestation of acts 
against the security of life and property. Some of these 
acts were made crimes for the first time, in fact, if not in 
theory (thus increasing the number of criminals), and many 
others were made much more heinously criminal. Probably 
the increased severity and sureness of punishment had some 
good results. Certainly the decrease in murders was very 
great, judging by the records of the " home circuit," from 
1689 to 1 8 14, and there was no added hesitation in punish- 
ing the convicted murderer with death. 



The whole number of 


Total of 


convictions for murder. 


executions for same. 


1689-1718=123 


87 


1755-1784= 67 


57 


1784-1814= 54 


44 



" When we consider the large increase of population 
during a prosperous period of one hundred and twenty-five 
years" (so reads the Report), " and also that a considerable 
city had grown up during this time on the south bank of 
the Thames" — it is probably " no exaggeration" to say that 
in this part of England (a district not over favorably situated 
in this respect) " murder has abated in the proportion of 
three if not four to one." 2 The convictions for murder in 

x Annual Register, p. 350-1. % Ibid., p. 338. 



Modern England 261 

London and Middlesex from 1755 to 18 14 also seem to 
support this belief. For the thirty years from 1755 to 1784 
there were seventy-one convictions, while from 1784 to 1 8 14 
there were but sixty-six convictions. The investigation of 
the select committee of 18 19 (already referred to) convinced 
them that " In general, murders and other crimes of violence 
and cruelty have either diminished or not increased ; and that 
the deplorable increase of criminals is not of such a nature 
as to indicate any diminution in the humanity of the 
people." 1 

Society was thus apparently successful in decreasing the 
amount of the most serious crimes of violence by the enforce- 
ment of terrible laws. The great mistake was in attempting 
to punish petty offences with the same severity. But whether 
useful or harmful on the whole, most of these eighteenth 
century statutes certainly outlived their usefulness, and it 
became painfully evident that the nation was choosing its 
punishments badly, and that many acts rightly criminal had 
ceased or almost ceased to be crimes. Accordingly, the 
early nineteenth century is filled with repeals of old criminal 
laws and the enactment of milder statutes, under which 
society immediately began to increase her criminals, by 
bringing to justice those classes of offenders whom she had 
latterly refused to prosecute. The committee of 18 19 found 
that certain laws had " not been carried into effect in 
Middlesex for more than a century, in the counties round 
London for sixty years, and in the extensive district which 
forms the Western Circuit for fifty." 2 In 1805 there were 
but 4,605 persons committed for trial for all indictable 
offences. In 1854 this number had increased to 29,359, and 
the figures had grown continually larger in the years be- 
tween. A like increase is shown by statistics of summary 
convictions since 1857; an increase which has become truly 

1 Annual Register (1819-20), p. 338. J Ibid., p. 339. 



262 Forgery Statutes 

appalling in recent years, unless we see clearly that it 
means life on a higher plane of social morality, rather than 
an increase in the bad and destructive elements of society. 

During the first half of the eighteenth century wealth and 
knowledge increased not slowly, and in the second half 
began a large development of trade and agriculture. Toward 
the close of the century the nation entered upon a period of 
" vehement life," and the nineteenth century has been 
throughout an era of unexampled prosperity and expansion. 
Population has multiplied rapidly and wealth even faster, 
but till 1833 the evils of the factory system were at their 
worst, the land was full of ignorance and over-worked women 
and children. With the great development of trade and 
commerce, increased heinousness naturally attached to 
fraud, forgery and other acts injurious to new business 
methods. Many such acts, not formerly punished as crimes, 
or regarded as simple misdemeanors only, became capital 
offences. 

Forgery. 1 - The reign of George III. (1 760-1 820) teems 
with forgery statutes, due to the commencement of the na- 
tional debt, the invention of bills of exchange and the estab- 
lishment of the banking system. 2 From 1824 to 1830 more 
than forty kinds of forgery were punishable with death. In 
1837, a ^> w ^ tn two exceptions, ceased to be capital offences. 

1 Forgery was vaguely recognized as a crime by common law from very early 
times; but in practice it was generally made a tort, remedied by civil action, until 
comparatively modern times. For statutes see I Hen. V., c. 3; and 5, Eliz., c. 14. 
By 1 Hen. V., c. 3 : "The party grieved may sue and recover his damages," and 
" fine and ransom at the king's pleasure." 5 Eliz., c. 14, awards " double damages 
to the party grieved .... and pillory, loss of;ears, forfeiture of profits of lands, 
and imprisonment. The introduction to the Report on Forgery, by the Select 
Committee on Criminal Laws of England (1824), shows how the idea of forgery 
as a crime was gradually enlarged. See pages 4 to 6. 

2 Pictorial Hist, of England, vii, 612; 13 Geo. III., c. 79; 18 Geo. III., c. 18; 
33 Geo. III., c. 30; 35 Geo. III., c. 66; 37 Geo. III., c. 46; 37 Geo. III., c. 122; 
41 Geo. III., c. 39; 41 Geo. III., c. 57; 43 Geo. III., c. 139. 



Modern England 263 

The penalties were at first largely enforced. Thus, Thomas 
Shelton, clerk at the Old Bailey, giving evidence before the 
investigating committee of Parliament in 18 19, states with 
regard to forgeries : " Bankers were extremely rigid for- 
merly " in prosecuting for these offences. " Generally per- 
sons convicted of forgery were executed, and indeed it was 
almost universally the case." 1 " Forgery," writes Pike, 
11 was very lightly regarded in early England, but was recog- 
nized as a crime of highest magnitude when trade became 
large. A great number of forgers were sentenced to death 
before the law was modified." 2 "No part of the criminal 
law of the latter part of the 18th century," writes Stephen, 
" was more severe in itself, or was executed with greater 
severity than this." 3 But, during the seventeenth century 
(a period of civil strife), the law of forgery remained unal- 
tered. According to the life of the people, so vary the na- 
tion's criminals. The forgery of " deeds, wills, bonds, bills of 
exchange and promissory notes or endorsements on them," 
was made felony without benefit of clergy by 2 Geo. II., 
c. 25, soon after the celebrated trial of Hales (1729) for 
forging endorsements on promissory notes. 4 The statute 5 
Eliz., c. 14 did not make this criminal. 5 The necessity for 
the safeguarding of forms of paper money, now coming gen- 
erally into use, led to the passing of many new social pro- 
hibitions, creating new and serious forms of crime. Thus, 
death was the penalty decreed for the forgery of bank notes 

1 See Report in Annual Register (1819), p. 346-7. 2 Pike, ii, 335. 

8 Stephen, iii, 182. For other statutes on this subject, see 15 Geo. II., c. 13, 
§ n, and consolidation act of 1830 (11 Geo. IV., and 1 Will. IV., c. 66). "Mr. 
Hammond, in the title ' Forgery ' of his ' criminal code,' has enumerated more than 
400 statutes which contain provisions against the offence." Pict. Hist, of England, 
vii, 612. 

* See 17 Stale Trials, pp. 162-296. 

5 See also 7 Geo. II., c. 22; and 18 Geo. III., c. 18, protecting corporations, 
etc.; for extensions of same law. 



264 Falsifying Accounts not Crime 

and everything of that nature, the uttering of forged bank 
notes, the making or possession of paper suitable for such 
forgery, or of instruments suitable for that end. 1 From 1830, 
the year of the first consolidation act, 2 the punishment for 
forgery became less severe, and in 1 837,3 tne death penalty 
was abolished for this offence, with a very few exceptions — 
done away by the consolidation act of 186 1. 4 Of course the 
forgery of postage stamps is a new crime, for they did not 
exist till the reign of Victoria. The law of 1861 contains 
many elaborate provisions on this subject. 5 Personation as 
a means of acquiring certain kinds of property was not recog- 
nized as a crime till after the trial of Orton for perjury for 
declaring he was Sir Roger Tichborne. 37 and 38 Vic, c. 36, 
1874, made this crime a felony, punished with penal servitude 
for life as maximum. Wilful falsifying of any account, or 
omission to make an entry in such account, by any clerk, 
officer or servant was not a crime till 1875. 6 This was greatly 
needed, as will appear from the following case. " A clerk in 
charge of a branch of a county bank overpaid his own account 
to the extent of ,£1500. When the inspector came round, the 
clerk transferred ,£2000 from the account of one of the cus- 
tomers to his own, the result being that he appeared to have 
a credit balance. He was prosecuted and held to have com- 
mitted no legal offence. His overpayment of his own ac- 
count was only an unauthorized loan to himself. His trans- 
fer of the ^"2000 was effected without forging the customer's 



x For statutes on this subject see 15 Geo. II., c. 13; 13 Geo. III., c. 79; 41 Geo. 
III., c. 39; and Stephen, iii, 182. 

2 11 Geo. IV. and 1 Will. IV., c. 66. 3 7 Will. IV. and 1 Vic, c. 84. 

4 24 and 25 Vic, c 98. 

5 There are yet some extensions of the English law of forgery needful. At pre- 
sent it is probably not a crime to forge " letters to prove the existence of a con- 
tract." Stephen, iii, 185. 

6 38 and 39 Vic, c 24. 



Modem England 265 

check, and by a mere entry in the bank books." ■ It is 
plainly evident that England has been very busy creating 
new social prohibitions along this line of the national growth, 
and that new crimes were taking the direction of greatest 
resistance to that growth. 

From 1802, we find a very great number of statutes re- 
lating to trade, navigation, ship-owners, mariners and fish- 
eries. Such laws began in the reign of Edward III., but as 
late as 1760 there were only thirteen in existence. At the 
death of George III., the number had increased to seventy- 
nine. 2 As Pike states: " Trade and the devices for its pro- 
pagation were continually outgrowing the primitive laws." 
" The extension of the list of felonies, in the eighteenth cen- 
tury, was, in one aspect, a sign of progress;" for "every 
new development of trade brought a new form of fraud," or 
"anew adaptation of old forms." 3 Commercial progress 
made possible the South Sea Bubble and many other swin- 
dles of the age, and " left a permanent impress on the statute 
book." A law (23 Geo. II., c. 13) aimed to prevent the 
seducing of artificers into foreign lands, and there were many 
more labor laws and many offenders against them. There 
were acts to punish the adulteration of new imports, such 
as the "Tea Act" of 1777. With the increased use of coal 
came many schemes for defrauding purchasers, which in- 
duced the passage of the " Coal Meter Act" in 1767. The 
growth of textile manufactures was accompanied by very 
severe laws against short measure. But the eagerness of 
eighteenth century legislators to increase the severity of the 
criminal laws soon exceeded both the needs and the desires 
of the nation. 

Early in the nineteenth century it was manifest that 

1 Stephen, iii, 186. See also extension of forgery to protect children, in factory 
act of 1833. 3 and 4 Will. IV., c. 113, § 28. 

3 Pictorial Hist, of England, viii, 635. s Pike, ii, 448 and 393. 



266 Fraudulent Bankruptcy not Crime 

society would no longer enforce such severe penalties, and 
that whole classes of evil doers, such as fraudulent bankrupts 
and fraudulent dealers of all kinds, were free from prosecu- 
tion, and had almost ceased to be regarded as criminals, to 
the great danger of business interests, and the social standard 
of morality. Thus, Mr. Basil Montague, giving evidence 
before the select committee on capital punishment in 1819, 
said that since 1732, when the death penalty was decreed 
against fraudulent bankruptcy by 5 Geo. II., c. 30, § I, 
" with nearly 40,000 bankrupts I doubt whether there have 
been ten prosecutions ; I believe there have been only three 
executions ; and yet fraudulent bankrupts and concealment of 
property are proverbial, are so common as to be supposed 
almost to have lost the nature of a crime." J Edward Foster, 

1 Extracts in Annual Register fori8i9, pp. 356-359. Fraudulent bankruptcy 
was first punished with any severity by 21 Jas. I., c. 19, § 7, 1623, which decreed 
pillory for two hours and the loss of an ear. This remained the penalty till 1732, 
when 5 Geo. II., c. 30, § 1, made the offence capital. Throughout the eighteenth 
century, however, this important offence was certainly not a crime, for " the exces- 
sive severity of the law prevented its execution," and this despite repeated stat- 
utes against it. Since 1819 the law of fraudulent bankruptcy has been greatly 
elaborated. See 6 Geo. IV., c. 16, 1825; 12 and 13 Vic, c. 106, 1849; 2 4 an( i 
25 Vic, c 134, 1861; 32 and 33 Vic, c 87, 1869, But the character of the 
offence has remained substantially unchanged. 

Fraudulent bankruptcy, as legally defined in 1732, was much the same as it is 
to-day, only now the act is a crime, and then it was not. The punishments de- 
creed became gradually much less severe and very much more frequently enforced. 
Stephen, iii, 231. 1 Geo. IV., c 115, § 1, substituted transportation for life, or 
for not less than seven years, or imprisonment up to seven years for the old death 
penalty. 12 and 13 Vic, c 106, 1849, created a new crime: "To destroy or 
falsify books," and to " obtain goods on credit under the false pretence of carry- 
ing on business within three months of bankruptcy, and with intent to defraud 
the creditor." This was punished with a maximum of three years imprisonment 
at hard labor. 24 and 25 Vic, c 134, § 221, 1861, made penalties for fraudu- 
lent bankruptcy much lighter, while more carefully defining the acts punishable. 
32 and 33 Vic, c 62, 1869 — the Debtors' Act — abolished imprisonment for debt, 
and " added a considerable number of new penal offences, consisting chiefly in 
omissions to comply with the provisions of the bankruptcy act." All these new 
offences are misdemeanors, with the exception of one felony, where a bankrupt 



Modern England 267 

Esq., banker, stated before the same committee that " prob- 
ably more than one-half" the cases of forgery are not pros- 
ecuted, because of the death punishment. This was true 
even for very aggravated forgeries, for large amounts (^1500 
instanced) with no extenuating circumstances. 1 Severe laws 
against false weights and measures were frequent, but were 
powerless against offenders, who were very numerous and 
for the most part unpunished. The petty frauds of retail 
dealers were practiced on a larger scale by manufacturers 
and merchants. 2 

If this evidence is correct, and there seems to be no good 
reason to doubt it, then fraudulent bankruptcy and other 
forms of business fraud were not crimes in the latter eigh- 
teenth and early nineteenth centuries ; for they were not 
socially punished, though notoriously common, and were 
deemed highly natural acts. The forty kinds of forgery, 
legally punishable with death, were certainly very danger- 
ously near the non-criminal line, if indeed they had not 
crossed it. Evidently, a wide-spread reduction of penalties 
was absolutely necessary, if these dangerous evils were to be 
punished as crimes. A thousand bankers, from all England, 
united in a petition to Parliament against the extreme death 
penalty for forgery May 24th, 1830. 3 The report of the 
select committee of 1819 states that: " Your committee are 

absconds with property. Punishments are decreed against " obtaining credit by 
false pretences," and " dealing with property intended to defraud creditors," by 
other sections of this same law. Not until 1857, by 20 and 21 Vic, c. 54, were 
fraudulent directors, trustees and other officers of public companies declared to be 
criminals, punishable under the law. " Experience," writes Stephen, " had shown 
these provisions to be necessary." See Stephen, iii, 233. 

1 See Annual Register (1819), p. 356. Also evidence of John Hartner, Esq., 
p. 359. Note the strong public sympathy in favor of James Bolland, swindler 
and forger, executed in 1772, and for Dr. Dodd, forger, both utterly unscrupulous 
rascals, who richly deserved their doom. 

s Pike, ii, 393. 

3 See Mr. Braugham's petition, quoted by May, ii, 557. 



268 Business Offences Made Crimes. 

of opinion . . . that in the present state of public feeling 
a reduction of the punishment in most cases of that crime 
(forgery) is become necessary to the execution of the 
laws, and consequently to the security of property and the 
protection of commerce ; ... and that this reformation is 
a matter of very considerable urgency." ' Business devel- 
opments and needs had induced the enactment, and in 
forgery cases the early enforcement, of laws so severe that 
the growing humanitarian spirit of the age had refused to 
punish under them ; thus decreasing temporarily the num- 
ber of criminals in the nation. But the common sense o 
the community, grown more intelligent as well as more 
humane, plainly perceiving that these actions should be 
crimes, caused the repeal of the old laws and the enactment 
of lighter penalties, which it could and did enforce, thus 
again swelling the volume of the nation's crime. But 
society, at this time, not only punished, and thus made 
criminal, many business offences long known to the laws. 
It branded other actions as crimes for the first time, by 
creating and enforcing statutes against them. " It is strange 
to discover," writes Stephen, " that until the end of the 
eighteenth century there was no law to punish embezzle- 
ment, no law to punish criminal breaches of trust until early 
in the nineteenth century, no law to punish fraudulent trus- 
tees proper until 1857, and no law to punish the falsification 
of accounts till 1875, except in a few special cases." 2 
Evidently in lines of fraud and forgery society has been 
very busy creating new crimes and criminals, and this for 
the general welfare. 

The humanitarian movement of the age further showed its 
strength in the increasing social pressure for legal remedy of 
worst abuses of the factory system, which had produced 

x See Annual Register (i8i9),p. 343. 
2 Stephen, iii, 186. 



Modern England 269 

terrible misery and degradation among the working classes. 
Such legislation meant the creation of many new social pro- 
hibitions and new crimes. It was high time. Labor was 
unorganized and powerless in the hands of greedy employ- 
ers who ground the faces of the poor. A well-meaning 
system of out-door poor relief (begun about 1796) had 
reduced agricultural laborers to pauperism, and put a pre- 
mium upon immorality and laziness. There was no system 
of national education, and great numbers of people could 
not even read and write. The Factory Act of 1833 r was the 
first great forward step in the reorganization of industry, 
and this was followed by the Mines and Collieries Act of 
1842, and other extensions of legal protection for workers. 2 
The early nineteenth century was " a period of great leg- 
islative reform, but of slow material progress." 3 The seeds 
of future good were planted, the harvest was not yet. The 
new Poor Law (4 and 5 Will. IV., c. 76) of 1834, has since 
resulted in a great decrease of pauperism and the restoration 
of manliness and self-respect to the rural population. The 
industrial legislation, just mentioned, and the legalizing of 
trade unions has done at least as much for the factory hands 
and miners. Commerce has grown, capital accumulated, 
the land has been covered with railroads. The better organ- 
ization of labor has enabled it to secure a larger share in the 
wealth product of the nation. Free trade was at last estab- 
lished, and was followed by great reductions in the price of 
necessaries of life. "In 1842 the Customs Tariff embraced 
1 163 articles; in i860 it comprised less than fifty, of which 

1 3 and 4 Will. IV., c. 113. 

1 5 and 6 Vic, c. 99; 23 and 24 Vic, c. 151, i860; and 34-page report on the 
Factories Act in " Accounts and Papers" 1840, showing large amount of new 
criminality (hundreds of people), convicted, fined and imprisoned in the year 
1839, for offences under this act. From 1889 to 1893 inclusive, the annual 
average of criminals punished under factory acts was 1662. 

5 Traill, vi, 229. 



270 Nineteenth Century England 

fifteen contributed nearly the whole revenue." * A mighty 
increase of wealth and population has resulted. 2 From 1821 
to 1 87 1 (fifty years), the population about doubled. It did 
the same between 1570 and 1801 (two hundred and thirty- 
one years). England has become a land teeming with great 
cities, a land of manufactures, trade and commerce. More 
than thirty million people live where three million dwelt in 
Norman times, and four and a half million in the golden age 
of Elizabeth. The increase of scientific knowledge and the 
great inventions of the eighteenth and nineteenth centuries 
have made this possible. England is the most wealthy na- 
tion in the world, in proportion to population. Her wise 
government and strong laws, enforced by the enduring en- 
ergy of a persistently progressive and moral people, have 
made good peace in the land. England is probably to-day 
the greatest leader in the world's civilization — largely be- 
cause she has succeeded in choosing her crimes wisely. 

The franchise was extended in 1832 and again in 1867 and 
1884-5, until now England has practically manhood suf- 
frage. Education gradually became more general and 
finally, in 1870, a compulsory public school system was in- 
troduced. In 1873 there were 6693 persons tried for of- 
fences against the Education Act, and in 1892, 86,149. See 
how with social progress criminals are multiplied ; for all of 
these petty offenders (if indeed it be a petty offence to keep 
a child in ignorance and dwarf its possibilities for usefulness) 
are punished as wrongers of society, and their acts seem to 
us more morally reprehensible, more criminal, than did cuts, 

1 The coming of free trade by no means did away with all offences due to the 
regulation of commerce. Bakers, brewers, butter dealers, coal dealers, millers, 
manufacturers of arms, apothecaries, knackers, pedlars, sellers of gunpowder, 
brokers, pawnbrokers, pilots, chimney sweeps, marine store dealers, manufacturers 
aud retailers of tobacco, etc., are all under strict police regulations, which, if 
broken, are punished by heavy fine or. thre% months imprisonment at hard labor. 

2 May, ii, 573, note. 



Modern England 271 

blows and other personal violence to our recent ancestors. 
The wide diffusion of knowledge, the lifting of the average 
of intelligence, above all the higher social morality with its 
expanding feeling of brotherhood and human sympathy, 
have caused in recent years an enormous multiplication of 
statutes creating misdemeanors (petty crimes), made nec- 
essary by the growing complexity of social relations and the 
increased interdependence of mankind. These statutes have 
been enforced. The judicial statistics of England and Wales 
show that in one year, 1896, the enormous number of 709,- 
338 persons were proceeded against by courts of summary 
jurisdiction. 1 The very names of the offences prove that 
much of this great mass of petty criminality is essentially 
modern, and the statistics show how rapidly such crimes 
have been increasing in the last forty years. Thus we find, 
comparing the annual average number of persons tried in 
the five-year periods 1857-61 and 1892-96. 

Annual Average. 
(1857-61) (1892-96) 

Adulteration of foods and drugs none 3,002 

Cruelty to animals 2,400 12,725 

Diseases of animals and offences in relation to dogs none 15,969 

Offences against the Education act « none 67,851 

Highway acts 6,766 27,525 

Drunkenness 84,358 175,628 

Factory acts 395 1,769 

Police regulations 45^59 86,292 

Railways 1,018 3,891 

Sanitary laws 4,357 7,446 

Sunday trading 893 3,006 

Stage and hackney carriage acts 5>949 8,292 

Vaccination act none 1 ,755 

Gaming (i. e., gambling) and other offences 2,804 2 °> io 3 

The mutual rights and duties of men, women, children 
and animals are being more and more carefully prescribed and 
guarded by legal statutes, creating not mere torts (offences 

1 The penalties were of course slight — fine, brief imprisonment, and sometimes 
but a night in gaol and mere caution for first offenders. 



272 Harm to One a Wrong to All 

at cival law), but new criminal offences. For society now 
believes that a great multitude of acts harmful, primarily, to 
the person, property or well-being of an individual citizen, 
or even stranger, should be punished as wrongs to the 
whole community — in other words, as crimes. The injury 
to one has become more and more a wrong to all, in the 
progress of civilization. 

Our remote ancestors could not have punished such acts 
as crimes, even if they had deemed them criminal, which 
they certainly did not. When society had barely grasped 
the idea of private property, forms of crime could not be 
numerous. Men were more passionate then, more rebelli- 
ous at restraint. The state was far less strong, less able to 
punish, and possessed no diffused army of policemen, ever 
ready to arrest and bring to justice offenders, small and 
great, against the laws. Drunkenness, for example, has been 
very widely punished as a misdemeanor only in recent 
years; 1 while the mass of police offences tried in criminal 
courts every month, require for their detection and punish- 
ment a very large and efficient police, and an extensive sys- 
tem of courts of summary jurisdiction, never possessed till 
modern times. 2 

1 Drunkenness is said to have increased greatly in eighteenth century England. 
Certainly it was not criminal then. The moral sense of the nation was not opposed 
to it, and punishments were rarely inflicted. Later, in 1825, Sir Walter Scott writes; 
" Drinking is not now the vice of the times; sots are excluded from the best com- 
pany." But while the upper classes were turning against the practice, gin drink- 
ing was very prevalent among the masses. See Report of Select Committee of 
House of Commons, 1834. After 1833 drunkenness became a criminal offence. 
No longer, as before, drunkards were " taken care of" by the police, and dis- 
missed when sober without being entered on the charge sheet." Traill, vi, 636. 

' 2 The metropolitan police was established by law in 1829; the borough police 
in 1836; the county police in 1839 and 1856. In 1858 there was one constable to 
every 902 of the population. In 1873 the proportion was one to 795, and in 1891 
(according to the census) England had a disciplined army of 40,596 police and 
constabulary, or one to every 714 of the population. The increase since 1881-2 
has been 7,423, or 22.3 per cent. See Stephen, 11 1, 194-200 for the ancient police 
of England and its utter inefficiency. 



Modern England 273 

The various statutes which established this police force 
" created a large number of petty offences, all of which are 
punishable on summary conviction." x The Highway Act, 
5 and 6 Will. 4, c. 50, bristles with penalties for offences 
of surveyors, collectors, cart drivers and owners, and other 
persons using, or injuring the highways. Every general or 
special railway act creates "many offences by servants of 
the railway, by passengers, and by other persons." A 
summary of offences against the public health and safety 2 
includes : " Sewerage and drainage, privies, water-closets, 
etc., scavenging and cleaning, water supply; cellar dwellings 
and lodging houses; common lodging houses; houses let in 
lodgings; nuisances; offensive trades; unsound meat; 
infectious diseases and hospitals; highways and streets; and 
miscellaneous." 3 The list is quite sufficient evidence of the 
modern multiplication of police misdemeanors. Then there 
are offences under the explosive acts, gas works acts, the 
adulteration of bread, or food and drugs, and water works 
in towns. 4 The Customs Laws Consolidation Act de- 
crees many penalties for revenue offences. The factory 
and mining acts, the companies acts and many others 
regulating special trades or businesses, all create new forms 
of crime, and a multitude of statutes punish cruelty to 
animals (a notable instance of the growth of our humanity), 5 

1 See Stephen, iii, 264-5, ( 2 an ^ 3 Vic, c. 47), 1839, sections 26-37 f° r offences 
on the Thames; sections 54-60 for street offences; 10 and 11 Vic, c. 89, 1847, 
sections 21-31. Section 28 alone specifies 30 misdemeanors. 

1 See Public Health Act. 

* Oke's Magisterial Synopsis. 

4 38 Vic, c 17; 22 and 23 Vic, c 66; 6 and 7 Will. IV., c 37; 38 and 39 
Vic, c 63; 10 and 11 Vic, c 17; 39 and 40 Vic, c. 36. 

5 The Annual Report of the American Society for the Prevention of Cruelty to 
Animals contains a history of the movement which the society represents. " The 
first statute passed in any country for the protection of cattle was introduced into 
the English Parliament in 1822. Previous to that, in 181 1, when Lord Erskine 
made a speech in the House of Lords, demanding attention to the sufferings of 



274 Crime is a Social Product 

fishery offences, unlawful gaming, etc. The Elementary 
Education Act of 1870 x and a later statute impose penalties 
on parents who do not send their children to school, and on 
employers of labor who disobey the regulations for the 
employment of children. Under this Education Act alone 
82,745 people were punished every year from 1889 to 1893, 
inclusive. Under Police Regulations, the annual average 
was 77,980; under Drunkenness, 178,845 ; under Cruelty to 
Animals, 11,855 ; under Sanitary Law offences, 8,822. 

Is not crime clearly a social product, and has it not been 
increasing with giant strides in this enlightened and humane 
nineteenth century? Is not this increase due to growth of 
intelligence and social morality, realizing the new needs of a 
rapidly progressing civilization, causing the enactment of 
new social prohibitions, and by the enforcement of these 
prohibitions increasing crime and making criminals? Doubt- 
less society does not wish offenders against her laws ; she 
would much prefer that all men prove obedient; but the 
times are in the future, far distant, more Christian centuries, 
when a new criminal law will find none to break it. Mean- 
while, the most civilized and progressive nations have the 

animals, he was met by a chorus of cat-calls and cock-crowing from that noble 
body which effectually drowned his words." 

"In 1824 the first society for the prevention of cruelty to animals was founded 
in London. In 1840 the queen permitted the society to prefix to its name the sig- 
nificant and useful adjective ' Royal;' after that it had plenty of friends." 

In 1888 a similar body was organized in New York by Henry Bergh. "His 
attention was called to the need of protection for animals by cases of unusual cru- 
elty which he had noticed in Russia while Secretary of Legation. In 1888 there was 
not a law in any State protecting animals against cruelty. There are now 209 
local societies in the United States, and there is not a State in the Union in which 
cruelty of whatever kind is not forbidden by law." See The Churchman. 

" Only in countries like Spain, which are still governed by the antiquated meta- 
physical teachings and narrow moral theories of the mediaeval hierarchy, has the 
jus animalium as yet found no place in codes of ethics or systems of jurispru- 
dence." See Evans, p. 14. 

1 33 and 34 Vic, c. 75, § 74; 39 and 40 Vic, c 79, §§ 7, 11, 12. 



Modern England 275 

most criminals, and more abundant crime as they ascend 
higher in the scale of social development. 1 

The increase of social prohibitions and of offenders against 
them in England, is but a type of what is happening in all 
the leading nations of the world. In the United States of 
America, the most highly developed, most progressive, best 
educated, most moral states have in general the largest 
percentage of criminals, while the smallest percentage must 
be sought for in the unprogressive and illiterate regions of 
the south, or in lately settled territories of the west. 2 

The Massachusetts legislature has often been called a 
manufactory of misdemeanors, and this state, always one of 
the foremost in our civilization, has, even by statistics of 
prisoners, almost the largest average ratio of criminals to 
population during the last five census periods. The record 
of criminal prosecutions in the lower courts of Massachusetts 
reveals the mighty rise in the flood of crime, and shows also 
that the great totals of her criminality are more than half 
due to the energetic attempt to punish drunkenness as crime 
against the state. But, subtracting the many thousand 
cases tried for this offence, we find that prosecutions for 
other misdemeanors reveal the same rapid increase in crime, 
from 26,679 in 1882, to 41,217 in 1894. 

There is not a state in the American Union, however, 
which has not seen a large and generally progressive in- 
crease of criminality (judging by prison population) since 
1850. Many of the young western states are to-day among 
the most rapidly progressive sections of the Union, and 
their last census returns (1890) show an astounding in- 

1 See next chapter. 

2 Official statistics in this country unfortunately relate only to prisoners, and 
give no returns of petty criminals, fined by the courts, under which class would 
come a very large percentage of the increasing criminality of the most highly de- 
veloped and progressive states. See United States Census, Report on Crime. 



/ 



276 Meaning of Increasing Crime 

crease in the proportion of prisoners to population. The 
same phenomenon is observable in some southern states. 1 
Increasing crime, therefore (due to the enforcement of new 
criminal laws, or of old statutes formerly unenforced), is a sign 
and till now a sure accompaniment of social betterment and 
growth to a higher plane of life, and does not imply social 
degeneration and decay, unless there is evident failure in 
attempts to crush out old and serious forms of crime, which 
should certainly show a marked diminution, if the nation is 
in strong and healthy life. Let us understand this clearly. 
Under static conditions — laws remaining the same and crim- 
inal prosecution the same (as we can imagine them in some 
utterly unprogressive community) — increasing crime would 
be an unqualified evil, would mean degeneration and threaten 
social death. But, in every truly progressive community, 
criminal law is being extended continually to guard and 
foster new relations and modes of life. Increasing prohibi- 
tions (if wisely chosen), and their enforcement, raise the 
average of intelligence and social morality among the lower 
masses of the people, by educating them through punish- 
ment to an understanding of new social requirements, an 
acceptance of new social duties ; but, at the expense of an 
increased amount of criminality, due to the actions of rebel- 
lious social laggards. Increasing totals of crime, together 

1 See United Stales Census, Statistics of Prisoners, 1850 to 1890. These sta- 
tistics include prisoners in the state prisons and penitentiaries, county jails and city 
prisons, workhouses and houses of correction, leased prisoners, military and naval 
prisoners, and insane prisoners in hospitals and asylums. The increase by States, 
from 1850 to 1890, has been as follows: (Ratio of prisoners to 100,000 popula- 
tion); Massachusetts, 1243 to 2335; California, 670 to 2813; District of Colum- 
bia, 890 to 2153; New York, 416 to 1912; Rhode Island, 698 to 1621; Mary- 
land, 681 to 1441; Pennsylvania, 178 to 1234; Georgia, 47 to 1599; South Car- 
olina, 54 to 1029; Arkansas, 81 to 1306; Mississippi, 76 to 913; Utah (census 
i860), 199 to 1294; New Mexico (census i860), 107 to 1335; North and South 
Dakota (census 1870), 212 to 538. 



Modem England 277 

with a decrease under old forms of delinquency, and some- 
times their entire disappearance, is exactly what history and 
statistics show for Great Britain, France, and so far as we 
have evidence, for other nations also. 1 But the decrease 
does not by any means counterbalance the increase under 
new forms of crime. 

It is necessary always to remember that no action is a 
crime unless society actually punishes it as a wrong against 
itself. No amount of legal prohibition will suffice, unless 
the laws are enforced. For a nation shows its will much 
more by the enforcement of punishment than by the crea- 
tion of laws, which may be the work of a few legislators, and 
contrary to the social wish. Only when the people stand 
behind and support the law, or inflict social vengeance by 

1 See succeeding chapters and Appendix I. 

It may be interesting to mention here the names of some old crimes which 
have become practically obsolete in England, the necessity for punishment having 
almost ceased. There have been no offenders under laws for treason, seditious 
libel and tumultuary petitioning (act of 1661) for many years. (Stephen, ii, 373 
and 376.) Forcible entry, in its old form, and piracy no longer vex society by 
land and sea. Usury ceased to be legally a crime in the eighteenth century, but 
a few wise exceptions have been made in the pawnbrokers and bill of sales acts, 
guarding the destitute, the ignorant and the foolish from the scoundrels who prey 
upon them. 

Religious crimes, non conformity, heresy, witchcraft, etc., are no longer pun- 
ished, for society has ceased to believe such acts rightly criminal. (See England 
under the Stuarts, page 240.) Freedom of religious thought and observance 
has been followed since 1832 by almost complete freedom of political discussion. 
(See many prosecutions for seditious words and libels (1704 to 1831) in State 
Trials?) " So far as press offences are concerned" the law of England " has 
almost entirely ceased to be enforced for a period of about 50 years." (Stephen, 
ii> 37°-) Probably the law of newspaper libel has been relaxed entirely too 
much. (See Stephen, ii, 384-5, upon this subject.) It should be noticed 
that some of these old forms of crime — treason, piracy and forcible entry — are as 
highly criminal to-day as they have ever been. Society would punish such offences 
if they were committed. But religious non-conformity, heresy, witchcraft, usury, 
and some old political offences are no longer even forms of crime: a man may 
commit any number of such acts, and not be punished as a criminal. 



278 Standard of Right Action 

lynch violence, do the actions aimed at become crimes. It 
is the social standard of right action, which determines for 
every age the crimes of that age. In the establishment of 
this moral standard, the man strong and influential in the 
nation naturally counts for more than one relatively weak 
and unknown. The power is distributed much as was the 
franchise in the Roman Republic ; a small group of great 
men have as much power as a large group of small men. 1 

1 The author planned as critical a study of French history, and of the growth of 
crime in France, as has been made for England, but the limits of this book and 
the time required for such a task prevented. A preliminary study showed that 
French history affords strong evidence for the truth of the theory here developed. 



CHAPTER XII 

HAS CRIME INCREASED DURING THE NINETEENTH CENTURY? 

THE nineteenth century has been filled full with the trans- 
formation of industrial life — that greatest event of modern 
times — wrought out through steam, machinery, and electri- 
city, so that the industrial arts of the eighteenth century are 
farther removed from those of 1900 than from those of the 
Roman Empire, or even Egypt under the Ptolemies. 1 The 
capital amassed during this single century amounts to a 
sum at least double all that has been accumulated and left 
by former ages. 2 A hundred years ago the annual output 
of the world's mines was estimated at £9,000,000 sterling, 
while between 1880-88 the average yearly value at the pit's 
mouth was £2 1 0,000, 000. 3 The value of goods manufac- 
tured each year in Europe and the United States has in- 
creased from ,£650,000,000 sterling in 1800, to £4,6 1 8,000,- 
000 in i888. 4 So rapid has been the diffusion of the com- 
forts and luxuries of life, and so radically have our ideas and 
ways of thinking changed, that we can realize only with 
great difficulty the extremely simple lives of our own grand- 
fathers. 

Nor has the march of education been less remarkable than 
the progress of industry and wealth. One hundred years 
ago reading and writing were rare accomplishments. Even 
as late as 1840 but two per cent, of adults in Russia could 

1 Compare the paintings representing trades on the walls of Pompeii and Egyp- 
tian tombs, with encyclopaedia engravings of the 18th century, and the illustrations 
in modern popular science magazines. 

2 Seignobos, p. 681. 3 Mulhall, p. 398. 4 Ibid., p. 365. 

(279) 



280 The Scientific Age 

write, fourteen per cent, in Spain, sixteen per cent, in Italy, 
and twenty-one per cent, in Austria ; while in France and 
the United Kingdom the proportions were forty-seven and 
fifty-nine, and in the United States and Germany eighty and 
eighty-two per cent, respectively. 1 The average number of 
children attending school has increased one hundred and 
forty-five per cent, during the forty-eight years since 1840; 
while the population of Europe has been increasing about 
thirty-three per cent. 2 Education has even been made com- 
pulsory by the most progressive nations. 

The nineteenth century well deserves the name of the sci- 
entific age, for it is the great discoveries in Physics, Chemistry 
and the Biologic Sciences that have made it possible. It is an 
age of rapid concentration — of large things generally — great 
armies and mighty cities, great factories and joint stock 
companies, gigantic trusts and vast labor organizations. It 
is an era of strengthening democracy, of fierce competition 
and great inequality, but of broadening and deepening 
sympathy, charity and mutual helpfulness. It is preemi- 
nently an age of progress, and if the theory of this book is 
a true one, we should find rapidly increasing crime. Has 
crime increased throughout the nineteenth century? Is it 
increasing now? For the first time we can seek our informa- 
tion in full and reliable judicial records of the criminal 
classes, which unfortunately do not extend back beyOnd 
i860 or 1870 for most nations; but enough is available to 
show the strong trend of both the anti-social and the social 
life in modern Europe. 

Of course the judicial statistics of crime, whether dealing 
with the number of persons held for trial before the courts, 
with the number of convicted, or the number of prisoners, do 
not and cannot give any exact information as to the total 

1 Mulhall, p. 231. ^ Ibid., p. 231. 



Has Crime increased? 281 

amount of criminality in the nation. This would equal the 
entire number of those acts which the society intends to 
punish as wrongs against itself, and for which it inflicts a 
penalty when it discovers and convicts an offender. Many 
crimes remain hidden, and others, although known, remain 
unprosecuted and unpunished. Such do not appear in the 
statistics. But students are fairly well agreed that these 
judicial records give us at any rate the best index we have 
of a nation's crime, and may with safety be relied upon to 
furnish an approximately correct idea of the rise and fall, 
the increase or decrease, of delinquency. This probability 
is greatly strengthened if we accept the definition of crime 
adopted in this book; which would exclude from among the 
truly criminal offences all conduct which the nation practi- 
cally leaves unpunished, either from unwillingness or inability 
to inflict the penalty. In other words, acts criminal in the 
eyes of the law, but protected or unprosecuted by society, 
are not crimes. Naturally such actions scarcely appear in 
the statistics, while the truly criminal conduct is largely 
recorded there. It has been found that the various forms of 
these numerical tables — especially the statistics of the 
accused and of the convicted — bear a certain proportionate 
relation to each other, which in general does not vary 
greatly. Thus both give practically the same results. 

England. The first annual official record of the state of 
crimes (commitments for trial) in England and Wales was 
prepared in 1805, and the volume for 1 841 reads : " From that 
time to the present there has been a progressive increase in 
the numbers committed. Until the peace in 18 14 the in- 
crease was gradual, but commitments then increased so 
rapidly that they were nearly doubled in three years. This 
great increase was maintained until 1821," and two years 
later " an increase again commenced, which continued almost 
uninterruptedly for the ten succeeding years." 



282 



English Indictable Offences. 



England and Wales. — The Total Number of Persons Committed for 
Trial for All Indictable Offences. 

Proportion 



per 100,000 
population. 



*8i7 i3»93« 1 

1818 13,567 I 

1819 14,254 \ 

1820 13,710 j 

1821 13,115 J 



Proportion 
per 100,000 
population. 



345 



1 805 4,605 49.00 

!8n 5*337 5 2 -5i 

1812 6,576 "J 

1813 7> l6 4 

1814 6,390 

1815 7,818 

1816 9,091 

In 1834 the statistical tables were enlarged, and a com- 
parison of the totals for the next two five-year periods 
indicate another large increase in criminality, after which 
the annual numbers do not vary greatly until 1855-56. 
In the following year a great change took place in the 
judicial statistics ; the records of the courts of summary 
jurisdiction appearing for the first time beside the tables of 
indictable offences. These latter statistics make a gigantic 
leap from less than 30,000 in 1854 to more than 53,000 
from 1857 to 1 86 1, 1 and after mounting yet higher in the 
years immediately succeeding, show, since 1886, a consider- 
able diminution in the actual figures, while in proportion to 
population the decrease has been very great, and almost 
continuous since 1862-66. Practically all serious crimes 
are indictable, as are also many old minor offences. 

England and Wales. — The Total Number of Persons for Trial -for 
All Indictable Offences. 



Annual average 

for each 5-year 

period. 

1834-38 22,174 

1839-43 28,058 

1844-48 27,027 

1849-53 27,431 

1854 29,359 



Proportion 
per 100,000 
population. 

I48.54 

174.95 
158.98 
I5I.80 



[836. 



20,984 



I4O.56 

1 See Appendix II. 



Annual average Proportion 

for each 5-year per 100,000 

period. population. 

1857-61 53,158 270.02 

1862-66 59,715 285.94 

1867-71 58,480 263.15 

1872-76 52,148 219.18 

l877-8l 57^34 225.58 

1882-86 59,259 220.II 

1887-91 56,280 197.83 

1892-96 54,689 181.93 

1896 50,679 164.91 



Has Crime increased? 283 

Modern forms of minor criminality appear under the sta- 
tistics of summary prosecutions, and have been continually 
increasing up to the present time. The total amount of all 
crime in England and Wales has also grown steadily larger, 
if the statistics reveal the truth. The number of persons 
held for trial in 1896 was 720,441, as against 389,502 in 
1857. Notwithstanding the very rapid growth of popula- 
tion, crime seems to have increased even faster. The pro- 
portion per 100,000 averaged 2003.34 for 1857-61 and in 
1896 it was 2344.34. We shall study these English statis- 
tics more closely later, for they will be found to throw much 
light upon the nature and the increase of crime in modern 
times. Moreover, their curious and strangely sudden 
changes demand an explanation. 1 

England and Wales. — Total Number of Persons for Trial before All 
the Courts and Tribunals Judging Criminal Offenders. 2 

Annual average for Proportion per 

each 5-year period. 100,000 population. 

1857-61 394,394 2003.34 

1862-66 446,537 2138.19 

1867-71 509,317 2291.82 

1872-76 607,989 2562.67 

1877-81 648,193 2554.81 

1882-86 683,936 2540.42 

1887-91 684,381 2405.70 

1892-96 690,130 2295.79 

1896 720,441 2344.34 s 

Fra7ice. The history of France during the nineteenth 

1 See Appendix III. 

2 See Judicial Statistics of England and Wales, 1898, vol. civ, p. 40. 

3 Scotland. The 29th Report of the Judicial Statistics of Scotland, 1897, gives 
the average number of criminal prisoners convicted each year in Scotland from 
1846 to 1896. The total number has increased from 17,425 (average for five 
years, 1846-51) to 48,707 (1891-96), and 50,822 in 1896. The tables reveal a 
very great decrease in serious offences (punished by three or more years of penal 
servitude) and a tremendous multiplication of sentences for misdemeanors : the 
class " Imprisonment, with alternative fine or penalty," having increased persist- 
ently and rapidly from 3,397 (1846-51) to 38,327 (1891-96), and 40,893 in 1896. 



/ 



284 France in the Nineteenth Century. 

century presents a confusing record of sudden revolutions, 
unexpected, unsupported, save by a small minority of the 
people, yet accepted by the nation at large as if it did not 
know its own mind and were willing to try any form of gov- 
ernment offered it. Yet, upon the whole, progress has been 
persistently in the direction of democracy, with the diffusion 
of political power, property, education and intelligence 
among the masses. 

The overthrow of the Emperor Napoleon I., in 18 14, was 
followed by the restoration of royalty, but the " old regime " 
was not restored. " France preserved the social organiza- 
tion created by the revolution, and the administrative or- 
ganization established by Napoleon." 1 The new govern- 
ment, which soon showed itself to be a " monarchy of the 
propertied classes," found the instruments of a centralized 
administration well fitted to its needs, and either did not 
wish, or did not dare, to attempt a return to the old out- 
worn forms of a belated feudalism and its serfdom. " From 
1 8 14 to 1848, the domestic history of France is little but a 
record of political contests. The court, the high officials, 
and the wealthy middle-class people who alone possessed 
the power, ignored the needs of the people ; and the people, 
excluded from the right of voting, had no way to compel a 
recognition of their needs." 2 They were densely ignorant 
and dependent, despite doctrines of legal equality. Strikes 
and even associations of laborers were criminal in the eyes 
of the law. " The great majority of the French people could 
not read," in [821 there were 25,000 communes without 
schools, " and it was not until after 1833 that the state began 
to organize primary instruction. Church services were 
rarely attended by the middle classes, and religion seemed 
to have lost its hold upon the life of the people ; nor did it 
begin to regain much influence until 1840. For the masses 

1 Seignobos, p. 106. * Ibid., p. 150-1. 






Has Crime increased? 285 

it was an era of peace — almost of stagnation — and quiet 
agricultural existence. Outside of Paris there was practically 
no political life. Wealth increased, but there was little true 
social progress, for the government and the voting class 
opposed even necessary reforms. It was a time of rest and 
recuperation, of ignorance and inertia. As the criminal 
statistics prove, there was comparatively little delinquency, 
and much of what there was, consisted of ancient forms of 
petty theft from forest and stream, and of offences against 
the customs laws, that have since greatly decreased in num- 
ber. 

France. — Total Number of Persons Tried by the Correctional Tribu- 
nals for Fiscal and Forest Contraventions. 

Annual average i Annual average 

for 5-year periods. for 5-year periods. 

1826-30 118,6s! 1 1861-65 28,862 

I83I-35 I38,75 2 1866-70 24,560 

1836-4O II 1,235 1871-75 28,727 

184I-45 102,385 1S76-80 25,131 

1846-50 95,966 1881-85 23,936 

1851-55 89,810 1886-90 27,724 



1856-60 57,470 I89I-95 

As what life there was in France during these 35 years 
was mainly political, so the new social prohibitions were 
political, and there were many offenders punished because 
of them. The government waged a ceaseless struggle 
against the Republicans, through the instrumentality of new 
laws, making criminal many acts against the power of the king 
and Chambers. In 1830, a law was passed against seditious 
placards; in 1831, against mobs; in 1834, against seditious 
cries. There was a new criminal statute against associations, 
and one forbidding the keeping of fire-arms in private 
houses. Over 2,000 Republicans were arrested, and 164 
tried before the Chamber of Peers, "for attempts against the 
peace of the state," in one monster prosecution during 

1 Estimate. 



286 The Second Empij'e 

1834. New press laws were passed, dealing with political 
offences of the newspapers, and the "Laws of September" 
made the condemnation of political offenders in general 
extremely easy. 

Then came another sudden and utterly unexpected revo- 
lution in Paris (1848), accepted, as usual, passively by the 
rest of France. But its importance for the nation was very 
great, for it gave political rights to every Frenchman of legal 
age. It awakened the masses of the people from their leth- 
argy. Their active interest in the national life commenced. 
They began to be educated politically. " At a single stroke 
the revolution took the power out of the hands of the prop- 
erty owners, converted France into a democracy, trans- 
formed all the conditions of political life," and attempted an 
equally radical transformation of industrial life. 1 For the 
Socialists at first rose to power. The revolution caused a 
business crisis, interrupting industry. Multitudes of the 
unemployed flocked to Paris, and the government resolved 
to find employment for them in national workshops. Seven 
million francs were distributed in wages to these men, but the 
plan was not successful. A great socialist insurrection fol- 
lowed, but was suppressed by the national guard with much 
bloodshed. " The prisoners were shot summarily, or tried 
and transported. Thirty- two socialist newspapers were sup- 
pressed by the government." 2 The socialist party was 
crushed out of existence. Then came the election of Louis 
Napoleon to the presidency by an overwhelming popular 
vote, followed three years later by the coup d'etat and the 
establishment of the second empire. An enormous multipli- 
cation of crime followed, from 1850 to 1865, as revealed by 
the statistics. Why was it? The nation was awake again. 
It was filled with new life. It was progressing rapidly — 
politically, industrially and educationally. Napoleon III. 

1 Seignobos, p. 159. * Ibid., p. 164. 



Has Crime increased? 287 

had to crush his enemies with a strong hand. There was no 
war. The army and the people supported him, placing in 
his hands practically unbounded power to inflict criminal 
punishment. 

This was undoubtedly a time of political education for the 
French nation, and the diffusion of other knowledge was not 
neglected, for " colleges and ecclesiastical primary schools 
were founded all over France." ■ A large development of 
modern forms of industry, finance and trade began ( 1 850-60) , 
which brought with it a corresponding increase in certain 
opposing kinds of criminality. Joint stock companies were 
created, railroads were rapidly constructed, great financial 
establishments — the credit foncier, the credit mobilier — were 
founded, and the systematic transformation of Paris was 
begun. The statistics on page 328 show the rapid increase 
of criminal convictions for fraud, forgery, and other business 
offences. 

Throughout the disastrous period of the Franco-Prussian 
war, the amount of crime punished by the French nation was 
relatively small, although a large part of the decrease is ap- 
parently accounted for by the absence of the statistics from 
the tribunal of the Seine. Notice the great drop in the total of 
police court contraventions, 427,010 (1866-70), as compared 
with 538,441, the average from 1861 to '65. The nation was 
probably too busy and distracted for the punishment of minor 
offenders. 

After the war, renewed social pressure rapidly increased 
the number of those prosecuted, for both delites and contra- 
ventions ; this upward tendency being strongly stimulated 
by the enforcement of the law of January 23, 1873, against 
public drunkenness. 2 The suppression of the Commune in 

1 Seignobos, p. 167. 

2 Statistique de la Justice Criminelle en France, Introduct. vol. (1880-81), 
page xciv. 



288 Prevalence of Crime 

1 87 1 was followed by 13,000 condemnations of political 
criminals ; 7,500 were transported to New Caledonia. Since 
then France has had no more rebellions or revolutions. 
The nation has certainly advanced very greatly in intelli- 
gence, industry and political stability since 1 8 14. 

Primary education was made gratuitous in 188 1, and 
compulsory by a law of the following year, but the law does 
not seem to be enforced. However, a larger proportion of 
the population is recorded as attending school in France 
than in any other country of Europe, except Switzerland. 1 
Trade unions were at last made legal in 1884. The ill- 
treatment of animals was made criminal by a law of July 2, 
1850, and prosecutions for this offence have been greatly 
multiplied. These things indicate a higher and wiser 
standard of social morality. The totals of all crime have 
increased since 1826-30, from 319,263 to 684,017 in actual 
numbers, and from 1002 to 1784 for each 100,000 of the 
population. In general, this increase has been in the direc- 
tion of greatest opposition to the new life, the upward 
progress of the nation ; and has been called into existence, 
very largely, by the enforcement of new social prohibitions. 
Since 1875, although the amount of crime has grown some- 
what, yet the totals have never again rivaled those from 
1856 to 1865, when the masses of the people had awakened 
from their lethargic, oppressed and almost stationary exist- 
ence under the monarchy, and the forces of the nation were 
progressing rapidly in many directions, usually associated in 
the development of a great modern, industrial and demo- 
cratic civilization. In proportion to population, crime has 
even decreased slightly in most recent years. Is civilization 
rising or declining in France? 

From 1856 to i860 the proportionate amount of crime in 
France and England was almost the same, to-day the French 

1 See Mulhall 



Has Crime increased? 289 

figures are far lower. England has increased her crime in 
proportion to population from 2003.34 to 2295.79, while 
France has been decreasing hers from 2062.00 to 1783.90. 
A comparison with other European countries — Austria, Italy 
and Germany — where both civilization and crime are be- 
lieved to be advancing rapidly, will surely prove interesting 
and instructive. Meanwhile, let us look for a moment at 
the French statistics themselves, and question somewhat 
more closely, whether the great rise in the figures from 
185 1 to 1865 actually meant a corresponding increase in 
the nation's crime, or not. 

Franxe.— Total Number of Prisoners for Trial before All the Courts 
and Tribunals Judging Criminal Offenders. 



Annual aver- Proportion 

age for 5-year per 100,000 

periods. population. 

1861-65 7 1 5>°n I 9 I2 «5 

1866-70 597> 8 5 q1 i$1°-*> 

1871-75 655,745 1816.3 

1876-80 664,822 1801.4 

1881-85 684,044 1815.8 

1 886-90 686,892 1 797.3 

1891-95 684,01 7 a 1783.9 



Annual aver- Proportion 

age for 5-year per 100,000 

periods. population. 

1826-30 319,263 I0O2. 1 

183I-35 348,866 IO7I.2 

1836-40 398,287 1 187.5 

1841-45 464,791 1357-8 

1846-50 487,534 I377-I 

1851-55 7 I 5>5°4 1999.6 

1856-60 743,114 2062.0 

The judicial statistics of France are directly comparable 
for a much longer time than those of any other nation. A 
division of these 70 years into three nearly equal periods, 
makes possible an interesting comparison between the 
average amount of crime in the early and relatively non- 
progressive period, and the era of vehement life and develop- 
ment that followed. 

The Total Number of Prisoners before All the French Courts and 

Tribunals. 

Total persons Proportion Persons 

held for trial. per 100,000. convicted. 

1826-50 403,748 1 199. i 35°,775 

185 1-75 685,445 1872.2 639,047 

1876-95 679,944 1799.6 650,318 

^ime of Franco-German war. Laws silent in the midst of arms; society 
disorganized. 

'Statistics for four years, 1891-2 and 1894-5. 



290 D elites and Contraventions 

The explanation of the sudden flood of crime, as recorded 
in the criminal statistics of France, from 185 1 to 1865, is 
three-fold. The first great cause was legal, the second 
judicial, the third, political. 

First : A glance at the table on this page will show that 
most of this great increase falls under simple police court 
contraventions, which mount with astonishing rapidity from 
258,690, the average for the five years 1846-50, to 463,254, 
and 530,311 for the next two quinquennial periods. The 
main reason for this is found in new laws, especially the law 
of June 8, 1851, upon the police of wagons and public 
coaches, which created many new forms of minor social 
prohibitions ; and the enforcement of such laws by the 
energy of a widely extended national police force. 

France. — Total Number of Persons Tried by the Correctional Tribunals 
for delites and by the police tribunals for contraventions. 

p„,- mnrt Total of delites 
Delites. ™™™£L and P. contra- 

contravenUons. ventions . 

Annual aver- Annual aver- Annual aver- Proportion 

age for 5-year age for 5-year age for 5-year per 100,000 

periods. periods. periods. population. 

1826-30 59,340 x 134,112 i93,45 2 607.21 

1831-35 64,455 138,193 202,648 622.21 

1836-40 80,550 198,615 279,165 832.31 

1841-45 93» I 4° 262,162 355,302 1038.00 

1846-50 125,448 258,690 384,138 1085.07 

1851-55 155,336 463,254 618,590 1728.73 

1856-60 149,950 530J3 11 680,261 1887.54 

1861-65 I43,i5 8 538,441 681,599 1823.14 

1866-70 142,005 427,010 569,015 1494-77 

1871—75 160,128 461,818 621,946 1722.70 

1876-80 171,352 463,965 635,317 1721.45 

1881-85 188,903 466,823 655,726 1740.62 

1886-50 199,872 455,o67 654,939 1713-65 

1891-95 443>57 8 

The second great cause was the coming of the practice of 

1 Estimate. Only total for all offences tried by the Correctional Tribunals 
given for this 5-year period. 



Has Crime increased? 291 

correctionalization. Laws of August 7th and October 
1 8th, 1848, permitted its introduction, and since 1855 this 
custom has been more and more generally observed. It 
consists in passing over the aggravating circumstances of 
certain crimes, in order to bring offenders before the cor- 
rectional tribunals, which inflict a surer, though lighter 
penalty. This has proved to be in the interest of social wel- 
fare ; for, prior to its introduction, juries oftentimes refused 
to convict, when the law demanded what seemed to them 
too heavy penalties. The change has been much the same 
as that wrought out in England by other means — i. e., the 
repeal of ancient laws and the enactment of the Criminal 
Justice and Summary Jurisdiction Acts. Bad conduct, once 
largely left unpunished, has been made truly criminal. So- 
ciety has grown both more eager and more able to prosecute 
and punish for crime. The increasing numbers and efficiency 
of the police are both an expression of this desire and a 
main cause of its fulfillment. The total of all crime, but espe- 
cially of minor crime, has been very greatly increased in 
France, by strengthened social pressure and new social 
prohibitions. 1 

The third great cause, multiplying French criminality 
between 1851-65, was political. Napoleon III. crushed his 
political opponents — especially the Republicans — by mak- 
ing them criminals. The coup d'etat of December 2d, 
1 85 1, established an autocratic empire, practically concen- 
trating all power in one man, the emperor, though theoret- 
ically it was vested in a sovereign nation, which had no way 
to express its will but by plebiscite, voting yes or no. The 
masses of the people supported Napoleon III. and gave him 
the "sole initiative in law making" (1852), and almost 
unlimited power to punish, especially for political offences. 2 
" The government depended on the army, which assured its 

1 See pages 289-90. * See law of 1858; also Seignobos. 



292 Republicans as Criminals 

power ; on the commercial middle class, satisfied with being 
no longer troubled by politics ; and, above all, on the clergy, 
who made the country electors vote for the official candi- 
dates." x 

Immediately after the coup d'etat, "the President pro- 
claimed martial law in 32 departments, granted himself by 
decree (December 8, 185 1 ) the right to exile all members 
of secret societies, and created mixed commissions (a gen- 
eral, a prefect, and an attorney) with power to judge with- 
out appeal. According to a document discovered in the 
Tuileries in 1870, there were 26,642 persons arrested, and 
only 6,500 released; 5,108 were made subject to police 
supervision, and 15,033 condemned (of whom 9,530 were 
transported to Algeria, 239 to Cayenne, and 2,804 confined 
in a French city). Eighty representatives, almost all Re- 
publicans, were banished." Napoleon " found himself abso- 
lute master of France." 2 Political life practically ceased- 
"The Republicans, deprived of their chiefs by exile or 
transportation, and persecuted by the police, had no longer 
any means of showing their opposition. Press offences 
were taken away from jury courts and given to tribunals of 
summary jurisdiction. It was unlawful to report * press 
cases or sessions of the Chambers, or to publish false news — 
that is to say, news displeasing to the government. Even 
individuals were watched by the police, and a political con- 
versation was enough to brand a person as a suspect under 
this administration, which, having no public exposure to 
fear, made arbitrary disposal of the liberty of all its subjects. 
The caprice of an agent might cause the arrest and detention 
of any one who seemed to him dangerous. The comedian 
Grassot was arrested for having been overheard to say in a 
cafe: 'This is like Sebastopol ; one can't take anything.' 
A woman was arrested at Tours for having said that the 

1 Seignobos, p. 175. 2 Ibid., p. 171. 



Has Crime increased? 293 

grape blight was coming again ; in releasing her the prefect 
threatened to imprison her for life if she spread any more 
bad news." All the classes in France were ordered to hold 
their exercises at the same hour, and the professors had to 
shave their mustaches, to ''remove from their appearance, 
as well as from their manners the last vestiges of anarchy." 
To wear a mustache thus became a criminal offence for a 
professor. 1 After the discovery of the Republican plot of 
1853, and three attempts to assassinate the emperor, the 
administration obtained the passage of the general security 
act (1858), which "gave government the power to detain, 
exile or transport, without trial, any person previously con- 
demned for political offences ; and to imprison or exile any 
person so condemned in the future." "Espinasse, a general 
well-known for his share in the coup d'etat, was appointed 
minister of the interior to apply this law. He sent an order 
to each prefect to arrest a certain number of persons, using 
his own choice in the selection. According to Blanchard 
this number varied from 20 to 41 ; it was 'proportioned to 
the general spirit of the department.' Each prefect inter- 
preted the order in his own way — some limiting themselves 
to men condemned at the time of the Republic, others tak- 
ing those who seemed to them dangerous, chiefly working- 
men, lawyers and doctors. The object was simply to in- 
timidate the people." 2 Surely there is little further need to 
ask whether the statistics (1851-65) reveal the truth, or, for 
what reasons crime increased so greatly in France, during 
the time of the second empire. 

Austria. Great changes have been taking place in Austria- 
Hungary during the last forty years. Defeated in foreign 
war, the ruling aristocracy has been forced to admit the 

^he great industrial and financial development beginning from 1850, and its 
effect upon the nation's crime, has already been mentioned. 
2 Seignobos, p. 176. 



294 The Austrian Empire 

masses of the people to some share of political power. The 
constitution and laws of the land have been radically altered. 
A province has been lost and another gained. Politically, 
the change has been from a strongly centralized despotism 
to a representative and constitutional monarchy. In a 
country where, in 1840, but sixteen per cent, of the popu- 
lation could read and write, more than sixty per cent, now 
possess the means for more intelligent and broader life. The 
manufactured product of the nation has increased from an 
estimated yearly value of fifty million pounds sterling in 
1800, to one hundred and forty- two millions in 1840, 
and two hundred and fifty- three millions in 1888. 1 The 
Empire of Austria-Hungary has been growing stronger, 
politically, intellectually and industrially; has been rapidly 
developing its type of civilization to a higher plane. During 
this progress and because of this progress, the amount of 
the nation's crime has multiplied enormously ; for the nation 
has been very busy in the creation and the stern enforce- 
ment of new criminal laws, regulating and maintaining mutual 
rights and duties in the changed relations of life. 

The Austrian Empire is a conglomerate of disunited na- 
tions, or fragments of nations, living side by side, owning 
allegiance to the same man, but preserving their distinctive 
languages, and to a great extent their native forms of admin- 
istrative government. Originally these peoples had nothing 
in common. Until 1806 they were not even united under a 
collective national name — Austria. Soon after this date the 
government became firmly centralized and absolutist. None 
but the nobility possessed any political rights. The people 
were densely ignorant, and were forbidden even to think 
about affairs of state. What education there was " still 
excluded all modern subjects." A democratic revolution in 
1848 came suddenly with a single riot, but was almost as 

1 Mulhall. 



Has Crime increased? 295 

speedily suppressed. Absolutism was restored, resting 
upon the power of the nobles, and upon the despotic author- 
ity of the Roman Catholic Church. M The general assembly 
of the thirty-two Austrian bishops condemned political 
liberty as ' impious,' and all political life ceased in Austria 
for ten years." x 

But after the disastrous Italian war of 1859, the absolutist 
system fell, for its credit was gone — the government could 
no longer borrow money, upon which its existence had for 
years depended. Popular interest could be re-awakened 
in public affairs only by admitting the people to some share 
in their decision. Very reluctantly this was recognized, and 
the next seven years were filled with political negotiations 
between the court and the nationalist factions, with attempts 
and failures in various forms of parliamentary government; 
until finally in 1867, after crushing defeats in the war with 
Prussia, a system of representative and constitutional gov- 
ernment was firmly established for the dual empire. The 
statistics of crime during this time of war, disorganization 
and confusion (1859 to 1869) indicate few criminals for all 
offences, even for the most serious. Whether the disorderly 
elements were drafted off into the armies, or society punished 
so little as to make many evil acts really non-criminal ; or 
whether malefactors continued as criminals, only to a some- 
what larger extent unpunished, it is very hard to decide. At 
any rate the statistical tables for this period do not seem 
rightly comparable with those after 1870. The constitution 
of 1867 guaranteed complete religious liberty. Public 
schools were soon afterwards removed from the supervision 
and control of the Roman Catholic Church, and thrown open 
" to all citizens without regard to creed." The pope de- 
clared these laws "abominable" and "void for the present 
and the future," but they have been enforced nevertheless; 

1 Seignobos, p. 422-3. 



296 Kingdom of Italy 

and a very considerable degree of industrial liberty has like- 
wise come in with the existence of political, educational and 
social rights. Manufactures, trade and commerce have 
rapidly developed, and Austria is no longer among the 
illiterate nations of the world. Radical change and upward 
progress have been the order of the last forty years, and in 
fostering and safe-guarding this healthy forward movement 
of civilization, many new social prohibitions have been found 
necessary, and, as the statistics show, the criminal popu- 
lation has increased with great rapidity. The tables are for 
Austria alone : those for Hungary not being available. 

Lately, there has been a reaction — the government has 
become less liberal, less anti-clerical, more aristocratic and 
anti-democratic. The statistics of crime for the last five 
years show a slight decrease. 

Total Convictions for All Criminal Offences. 
Austria. 

Annual average Proportion per Census 

for 5-year periods. 100,000 population. 

1871-75 303*381 1477-° i8 7 q1 

i8 7 6 " 8 ° 416,042 I l8go 

1881-85 527>7i3> 

l886 "9° 579,725} ■ 24 o 3 . l890 

1891-95 568,677/ ° y 

Italy. 

Annual average Proportion per Census 

for 5-year periods. 100,000 population. 

1881-85 367,510 I291.3 l88l 

l886 "9° 467,249 \ l6l4>7 l89I . 

1891-95 506,687) 

1S96-97 5 2 7> 6 34 

Italy. The unity of Italy, like that of Germany, has been 
wrought out through victorious war, and by the federation 
of many little states around the strongest and most warlike 
of their number. From 1859 to 1 871 Europe witnessed the 

1 Estimate. 



Has Crime in a- cased? 297 

binding together of two great scattered races, with their 
little princedoms, into two strong national groups, drawn 
together at last by the powerful attraction of kinship and 
mutual interests. As it was when history began, so nation 
building is still the work of war. Those races whose un- 
conquerable love of liberty and independence made national 
unity and social growth for long most difficult, have estab- 
lished at the last the best and most progressive type of civi- 
lization — a truly active, well-balanced, moving equilibrium 
— by preserving the right and opportunity for individual 
development and socially useful variation ; but always at 
the expense of an increasing mass of crime, utterly unknown 
among unprogressive tribal communities, and the barbaric 
empires of the world. 1 

Thus, since the establishment of the kingdom of Italy, the 
totals of its criminality have been advancing with giant 
strides; from 367,510 (1881-85) to 527,634 (1896-97). 
The reasons for this are manifest. The upbuilding and 
strengthening of a centralized parliamentary government, 
the enforcement of law and order after tumult, disorganiza- 
tion and confusion, the crushing out of old hereditary forms 
of organized lawlessness, and the rapid development of in- 
dustrial and commercial life, especially in the northern 
provinces, have all called for the creation and strong social 
enforcement of new criminal laws, political, administrative, 
fiscal, industrial, social. 

Sometimes the laws were already in existence, but the 
evils they were aimed at had never been made crimes. 
The struggles of the Italian soldiers and gendarmes against 
brigand bands in the mountain districts, have at times 
seemed almost like organized warfare. The national army 
has been a splendid school for the Italian people ; a school 

1 See the chapter on Savages; on Peru, Mexico, etc. 



298 The New Penal Code 

"for national sentiment" and "also a primary school for 
raw recruits who enlisted without knowing how to read:" 
(64 per cent, in 1866.). 1 The diffusion of popular education 
in united Italy has been marked, although the compulsory 
education law has never been enforced, and the nation is 
not yet ready to punish as crime the rearing of children in 
ignorance. Yet in 1889, 47 per cent, of the population 
knew how to read and write ; a very great improvement 
since the 14 per cent, of 184c). 2 The electoral reform of 1882 
extended the right to vote by an educational qualification to 
1 »3 3 8,000 men, the total number of voters being increased 
at that time from 627,000 to 2,048,000. The Italians seem 
to be growing more democratic, more peaceful and orderly,, 
more wonted to their national government. 

Long and patient attempts to secure a reconciliation with 
the pope and induce him to renounce his claim to temporal 
power having proved unavailing, the new penal code of 
1889 decreed imprisonment with hard labor for "any attempt 
against the unity of the state;" also "one year's imprison- 
ment for any servant of the Church who should, in the per- 
formance of his office, criticise any action on the part of the 
government." 3 A large amount of other new legislation 
was also introduced by this code, which, as Signor Bosco 
writes, " not only made criminal acts formerly unpunished, 
and modified the juridical concept of certain offences, but 
introduced notable changes in the prosecution of some 
delites, increasing the ease with which the party injured can 
promote penal action." 4 Delites, including all serious 
delinquency, have accordingly increased about 30 per cent., 
and all crime by over 40 per cent., from 1885 to 1897, 

1 Seignobos, p. 360. 2 Mulhall. 3 Seignobos, pp. 368-9. 

4 As did the Criminal Justice Act, 1855, and the Summary Jurisdiction Act, 
1879, in England. 



Has Crime increased? 299 

while the growth of population is estimated at 12 per cent, 
for the same years. 

Germany and Spain. The judicial statistics of Germany 
and Spain relate only to offences punished under the criminal 
code, and, in Germany, to a few other crimes recently created 
by special laws. Later chapters of this book will show the 
radical difference in the nature of the crimes most prevalent 
in these two countries. Meanwhile, a glance at the following 
table will reveal the enormous increase of delinquency in 
modern Germany — a state that has been advancing so very 
rapidly to the proud position of political, educational and 
industrial leadership upon the continent of Europe — and the 
almost stationary condition of criminality in Spain, where 
political disaster, economic distress, and the burden of un- 
educated ignorance and blind superstition have made of a 
once great nation an almost unprogressive, if not a degen- 
erating people. 

Total Convictions for Offences under the Criminal Code, etc. 
Germany. 

Annual average Proportion per Cens 

for 5-year periods. 100,000 population. 

1882-85 337.290 745-7 

1886-90 362,220 773-° 1885 

1891-95 428,823 867.6 1890 

1896-97 460,292 880.4 1895 

Spain. 

Annual average Proportion per Censui 

for 5-year periods. 100,000 population. 

1883-85 84,188 504.I 1880 

1886-90 91,846 532.5 1891 

I89I-95 89,923 521.4 1891 

1896 8l,Il8 

All the leading civilizations of Europe — England, Ger- 
many, France, Austria and Italy — reveal, in their judicial 
statistics, the same great forward movement of the flood of 



300 Crime and National Development 

crime ; not only in the actual amount of delinquency, but 
also in proportion to a rapidly increasing population. 1 
Spain alone, the one laggard nation we have been studying, 
does not show increasing criminality. Four great states 
give the totals of convictions for all criminal offences. 
Placing the average number of those convicted per 100,000 
of the population beside the estimated annual value of the 
manufactured product and the percentage of the people able 
to write, we get a rough idea of the relation between the 
industrial efficiency, the educational activity, and the amount 
of criminality in these nations. 

England. Austria. France. Italy. 

Average annual con- 
victions for all 
crimes per 100,000 
of the population 
(1871-1890) 2183.8 2125.9 1734.8 1464.5 

Estimated value of 
the manufactured 
product (1888) in 
pounds sterling ^820,000,000 ^253,000,000 ^485,000,000 ^121,000,000 

Percentage of popu- 
lation able to write 
(1889) 90 per cent. 55 per cent. 85 per cent. 47 per cent. 

The extraordinary amount of crime in Austria may be 
accounted for by the extremely rapid development of that 
nation — politically, industrially and intellectually — in recent 
years. From 187 1 to 1875, the proportion of convictions 
for crime in Austria was far lower than in France — 1477.0 
per 100,000 population, as against 1722.4 for the latter 
country. In Italy also, as we have seen, the proportion of 

1 " Latest figures show increase of crime in almost all countries, especially in 
lighter crimes." Mayo-Smith, Statistics and Sociology. 

2 Statistics for ten years (1881-1890). Census figures of 1870-1 and 1880-1 
used for calculation of proportions of crime. See MulhalPs Dictionary of Statistics 
for estimates of manufactures and percentages of ability to write. 



Has Crime increased? 301 

convictions is very rapidly increasing, from 129 1.3 for the 
period 1881-85, to 1680. 1 for 1891-95; keeping pace with 
the nation's progress. Do not the most civilized and pro- 
gressive states have the most crime, and more crime as 
civilization increases? 



CHAPTER XIII 

IS PUNISHMENT POWERLESS AGAINST CRIME? 

Is civilization, then, a failure, as some would have us 
think? Are we losing our moral fibre, and becoming more 
and more degenerate in mind and body? Is the actively 
anti-social man — the true criminal — securing an ever stronger 
foothold in our midst? Is serious crime increasing steadily, 
and are our punishments powerless against its growth? 
"Why," writes Dr. Morrison, of her majesty's prison, Wands- 
worth, "are our penal methods so helpless and discomforted 
in face of the criminal population? Why do the combined 
efforts of legislators, judges, police and prisons produce so 
few practical results? Is it because the social disease with 
which these agencies are grappling is beyond the reach of 
human skill, and will continue to rage with unabated vir- 
ulence so long as social life exists? 1 If so we may well 
tremble for the welfare of the state, and look with gloomy 

1 See " The Female Offender" Lombroso and Ferrero. Introduction written 
by W. D. Morrison, page vii. Dr. Morrison believes that if the " principles of 
penal treatment advocated by the criminal anthropologists" — classification, refor- 
mation, education — "were applied to the criminal population, it is certain that 
recidivism would diminish, it is certain that the habitual criminal would become a 
greater rarity, and, most important of all, it is certain that society would enjoy a 
greater immunity from crime." (See p. xx.) 

Concerning this last statement the author regretfully finds himself compelled to 
differ even with so high an authority as Dr. Morrison; and this despite his firm 
belief in the great practical value of the "penal treatment advocated." For the 
amount of a nation's crime depends upon (i) the degree of civilization attained, 
(2) the rapidity of social evolution, necessarily calling into existence new forms 
of crime, and (3) the general attitude of the people toward the criminal law, and 
especially the new laws : obedience being more difficult to obtain where individual 
liberty is customary and highly prized, and restraint consequently more irksome 

(302) 



Is Punishment Powerless against Crime ? 303 

forebodings toward the future. For, as General Brinkerhoff, 
President of the National Prison Congress of the United 
States, well says: "Other questions which agitate the pub- 
lic and divide parties are doubtless important. But the 
country can live and prosper under free trade or protection, 
under bimetallism or monometallism, under Democracy or 
Republicanism ; but it cannot survive a demoralized people 
with crime in the ascendant. That crime is on the increase 
out of proportion to population is indicated in many ways, 
but for the country as a whole, the United States census is 
the most reliable guide/' 1 

These arc not isolated expressions of pessimistic opinion. 
In France, Germany, Italy, and other countries, distinguished 

1 The United States Census — Report on Crime by Decades. 

Year. Prisoners. Ratio to population. 

1850 6,737 I in 3,442 

i860 19,086 1 in 1,647 

1870 32,901 1 in 1,171 

1880 58,609 1 in 855 

1890 82,329 1 in 757 

" This rate of increase in a few States, we are glad to note, has not been main- 
tained, and in one or two, for the higher crimes, it has even decreased a trifle; 
but, upon the whole, the swell has been continuous, like a tide that has no ebb." 
(General R. Brinkerhoff.) 

Compare with these figures the statistics of prisoners in Orissa, India, under 
British rule since 1803, as revealing the relation of civilization to increasing crime. 
In the Districts of Orissa " crime is much less frequent than in the more civi- 
lized parts of Bengal." "Cottack is the most civilized of the three Districts, and 
furnishes the highest proportion of criminals. Yet the average jail population 
was but 415 in 1868, or about one person to every 3,116 of the population. No 
European country could show anything like this immunity from crime which the 
worst district in Orissa enjoys. In Blasaor the proportion is one to every 3,375 
of the population. Pure District, however, the seat of the so-called abominations 
of Jugannath, would blush to own such an overwhelming criminal population. 
The proportion was, in the last year of which we have the returns, one criminal 
to every 6,000 of the population, and one female to every ioo,coo." "Strictly 
speaking, there are no criminal classes in Pure District — that is to say, no classes 
who live by preying on society." See W. W. Hunter, Orissa, ii, 135-6, Appen- 
dfx, i, 21, and Appendix ii, 58. London, 1872. 



304 Serzoi/s Crime in England 

specialists have voiced these same sad views. Crime is in- 
creasing rapidly, and our existing penal systems are power- 
less against it. Professor Von Liszt, an eminent German 
jurist, has felt himself compelled to this belief by his recent 
wide survey of these important problems. Have we really 
good cause for great anxiety and fear? What do statistics 
tell us concerning old and serious forms of crime? Is there 
a progressive increase among heinous criminals? It is cer- 
tainly worth our while to investigate. 1 

England. The total number of persons arraigned for 
serious crimes before the high courts of England and Wales, 
from 1857 to 1896, were as follows: 

England and Wales. — Total Number of Persons for Trial at Assizes 
and Quarter Sessions. 

Annual average for Proportion per 

5-year periods. 100,000 population. 

I857-6I I7.825 90.53 

1862-66 - 19,758 94.61 

1867-71 18,445 83.OO 

1872-76 i5>°96 63.63 

1877-81 15,567 61.36 

1882-86 14,303 53.13 

1887-91 12,481 43.87 

1892-96 11,816 39'3* 

1896 11,103 36.13 

Social pressure against heinous criminals appears to have 
been exceedingly successful in England during the last half 
century. Serious crime has very greatly decreased, both in 
actual numbers, and yet more notably in proportion. to the 

1 But international comparison should be avoided (except, perhaps, in the case 
of an offence like homicide), for the forms of crime judged by the higher criminal 
courts are far more numerous in some nations than in others, and this not alone 
on account of the varying degrees of criminal heinousness attached by different 
peoples to the same act, but also, and chiefly, because some nations, like the 
French, Italians and Austrians, have three different grades of criminal offences — 
serious crimes, delites and contraventions — while the English and Americans have 
but two — serious crimes and misdemeanors — and the Germans only one (so far 
at least as their statistics are concerned), all offences, grave and petty, being 
grouped together, as crimes against the person, property or the state. 



Is Punishment Powerless against Crime ? 305 

population. The totals have grown steadily less and less 
since the early sixties, and the statistics for Ireland give 
exactly the same pleasing results. 

Ireland. — Total Number of Persons for Trial at Assizes and Quarter 

Sessions. 

Annual average for Proportion per 

5-year periods. 100,000 population. 

1852-56... 12,155.2 185.52 

1857-61 6,071.0 99.52 

1876-S0 4,255.6 80.86 

1881-85 3^83.2 73.II 

1886-90 2,430.4 50.55 

1891-95 2,133.0 46.I5 

But perhaps the United Kingdom stands alone in happy 
isolation as to this retreating march of serious crime? 

France. The French national statistics extend from 1826, 
and, with care, are comparable safely throughout their entire 
length, a period of seventy years. Courts of Assize (Cours 
D' Assises) do not have jurisdiction over so large a propor- 
tion of criminal acts as do the Assizes and Quarter Sessions 
in England ; for the French possess Correctional Tribunals 
(Tribunaux Correctionnels) dealing with delites, a class of 
offences midway between serious crimes and police court 
misdemeanors. 

France. — Total Number of Persons for Trial at Assizes. 

Annual average for Proportion per 

5-year periods. 100,000 population. 

1826-30 7,130 22.38 

1831-35 7,466 22.92 

1836-40 7,885 23.51 

1841-45 7> io 4 20.75 

1 846-50 7,430 20.99 

1851-55 7,104 I9-85 

1856-60 5,383 14.94 

1861-65 4>55° I2 -i7 

1866-70 4,275 11.23 

1871-75 5,072 14.05 

1876-80 4,374 11.85 

1881-85 4,382 11.63 

1886-90 4,229 11.07 

1891-95 3.984 1 10.39 

1 Statistics for 1893 omitted (not obtainable). 



306 Serious Crime in France 

French statistics evidently support the English. The 
totals of most serious crime show a persistent decrease in 
actual numbers, from more than 7,000 to less than 4,000 
persons held for trial ; while in proportion to population the 
diminution is far more than half, from 22.38 to 10.39, f° r 
each 100,000 inhabitants. This is encouraging. But do 
these figures tell " the truth, the whole truth, and nothing 
but the truth?" Many persons doubt the competency of 
statistics as witnesses at all times, but especially perhaps in 
criminal matters. Let us look very closely and critically, 
but I trust not wearyingly, at them for a moment, to get a 
glimpse of the strong currents at work beneath the quiet 
surface of this sheet of crime; and see whether, like a great 
Gulf Stream, some marked change in judicial procedure 
may not have borne silently away a large portion of these 
French criminals, simply to deposit them in other tables of 
statistics? What do expert statisticians think of the relia- 
bility of the evidence presented by these figures, so labo- 
riously and carefully collected during seventy years of 
modern life? The great object is to find the truth, irre- 
spective of any theory whatsoever, and truth is not always 
easy to discern. 

Reasons for Decrease in the Totals of Serious Crime. 

From 1826 to 1855 the average annual number of 
prisoners held for trial before the French courts of Assize 
did not vary greatly, but in proportion to population there 
was a sensible decrease, from 22.38 per 100,000 at the be- 
ginning of the period, to 19.85 at the close. After 1855, the 
totals decrease rapidly — a decrease accentuated in 1870 
under the influence of war, when by far the lowest total, 
3,501, was reached. [Laws silent in the midst of arms: 
society disorganized.] Then followed a reaction and some- 
what larger numbers, falling again from 1875-80 and con- 



Is Punishment Powerless against dime? 307 

tinuing to decline until the present time, when the figures 
again fall below 4,000, and continue there. The principal 
cause of the reduction since 1855 is the custom, more and 
more generally observed, of passing over the aggravating 
circumstances of certain crimes in order to bring offenders 
before the correctional tribunals, which inflict a surer, 
though lighter penalty. This practice, called " la correction- 
nalisation," has thus come about in the interest of the social 
welfare, because juries oftentimes refused to convict where 
punishments they deemed too heavy would surely follow 
under the law, and also to diminish the expenses of criminal 
prosecutions. By this practice France has accomplished 
much the same result as England by the repeal of old and 
cruel laws, and the enactment of lighter penalties. In both 
countries, the growing moral sense of the community 
demanded less severe punishment, if evil acts were to be 
punished as crimes. The reply to this demand, in milder 
criminal procedure, has brought to both nations increased 
criminal prosecutions before the lower courts ; additions to 
the acts punished as crimes, and a consequent multiplication 
of criminals. Laws of 7th August and 18th October, 1848, 
permitted the introduction of this extra-legal " correction- 
nalisation" into the French courts. In the statistics for 
1856-60 its great influence is plainly manifest. It has be- 
come a flrmly seated judicial custom, and is said to be con- 
ducted with much discernment and justice. A law of 1863 
has also contributed to reduce the number of prisoners 
(prevenus) tried before a jury, by placing certain crimes, 
such as cuts and blows, corruption, false witness in certain 
cases, and menaces within the jurisdiction of the inferior 
courts. But after making full allowance for correction- 
alization, French statisticians believe that the amount of 
serious criminality has Certainly been diminished. The 
thirty years before this system of extenuating circumstances 



308 Austria and Italy 

was introduced, show a very considerable decrease in pro- 
portion to population; and during the fifteen years 1881 
to 1895, when the effects of the changed procedure and 
of the legislation of 1863 may be considered to have worked 
themselves out, the decrease has also been noteworthy, both 
in actual number of offenders and in proportion to popu- 
lation. 

In England, as we have seen, the need of lighter punish- 
ments, if malefactors were to continue criminals, resulted in 
the direct legal transfer of large classes of offenders to the 
jurisdiction of the inferior courts. This change was intro- 
duced in 1855, an d in 1879 its sphere of influence was very 
greatly extended. The effect upon the statistics was imme- 
diate ; not diffused over a long period of time, as in France. 
Therefore we can the more easily and accurately make 
allowance for it, and may rest secure in the belief that Eng- 
lish judicial statistics since 1858 reveal the truth as to the 
great decrease of serious criminality throughout the nation. 

Germany does not separate her statistics of serious crime 
from those of minor offences. The great recent growth of 
her delinquency, as a whole, has already been noted, and its 
more searching examination later will reveal some interest- 
ing and important tendencies in the modern march of crime. 

Austria and Italy have been passing through great politi- 
cal changes and developments since i860. The progress in 
modern forms of industry and trade has also been note- 
worthy. In both nations the criminal population has been 
increasing with startling rapidity. Have serious criminals 
multiplied in like proportion? For Austria, apparently yes, 
at first sight. The totals mount rapidly from i860 to 1880, 
only to be followed by an almost equally rapid fall during 
the ten years from 1886 to 1895, so ^at in proportion to 
population the Austrian statistics show a considerably less 
number of condemned for serious crimes for 1886-95 tnan 



Is Punishment Powerless against Crime? 309 

for 1866-75. Delites are few in number in Austria, and 
almost half of the persons condemned by the high courts of 
the nation were sentenced to terms of imprisonment not ex- 
ceeding three months, so that much of this criminality is 
really not serious. In Italy, on the contrary, where offences 
termed delites are much more numerous and increasing 
rapidly, the totals of most serious crime show a very great 
and persistent diminution. 

Austria. — The Total Number of Persons Condemned for (Serious) l 

Crimes.' 

Annual average for Proportion per Census 

5-year periods. 100,000 population. 

1861-65 18,154 

l866 ~7° 2 4' l8 9l 125.34 i8 7 o» 

1871-75 27,304/ 5J4 7 

l8 7 6 " 8 ° 3M28| l88o 

1881-85 31.475 J 

l886 "9° * 8 ' 8 34\ I2I . 7 o 1890 

1891-95 29,328 J 

Italy. — Total Number of Persons Condemned for Serious Crimes by 
the Courts of Assize.* 

Annual average for Proportion per 

5-year periods. 100,000 inhabitants. 

l8 75~79 6,8 3 o| 

1880-84 6,464 / w 

l88 5" 8 9 4,952| I3<982 

1890-93 3,297 j 

In Scotland the number of criminals sentenced to long 
terms of penal servitude has fallen to less than one-fifth dur- 
ing fifty years. 

1 Almost half these persons were condemned to terms of imprisonment not ex- 
ceeding three months. 

3 See Statistische Monatschrift (1899), 25 Neue Folge, 4; Dr. Hugo Hoegel, 
pp. 378-9; and Sulla Statistica della Delinquenza in Vari Stati d'Europa, 
A. Bosco, p. 57. 

s Estimate from 1869 census. 

4 See Annuario Statistico Italiano (1895), P a g e 263. 



3 1 o Serious Crime in Spain 

Scotland. — Total Number of Persons Sentenced to Penal Servitude 
(from Three Years to Life Penalty.) 



Annual average 
for 5-year periods. 

1846-51 . 432 

1851-56 337 

1856-61 237 

1861-66 207 

1866-71 210 

1871-76 163 



Annual average 
for 5-year periods. 

1876-81 I6l 

l88l-86 l8l 

1886-91 I08 

1891-95 79 

1896 85 



Spain. Delites, which have been rapidly increasing 
among the most progressive and highly civilized nations in 
recent years, are, in Spain, united in the statistics with more 
heinous crimes, and the two together show a decided de- 
crease. Even when contraventions, under the code, are 
added to these figures of serious criminality, the result is a 
diminution since 1888. This does not bode well for the 
upward growth of civilization in the Iberian Peninsula. 

Spain. — Total Number of Persons Condemned for Both Serious Crimes 
and Delites under the Penal Code. 



Annual average for Proportion per q 

5-year peiiods. 100.000 population. 



nsus. 



1883-85 22,853 136.84 I880 1 

1886-90 23,405 135-7° 1891 

1891-95 20,102 1J 6.55 1891 

1896 19,623 

Official records of the criminal classes reveal, therefore, 
a notable decrease in the total amount of serious crime 
among the most civilized and progressive nations of modern 
times. We know that justice is becoming more sure — the 
proportion of convictions to acquittals having very generally 
grown larger — while we have good reason to believe that 
the pursuit of criminals has become more keen and success- 
ful; and therefore, it is most probable that the great de- 
crease recorded in the statistics is exceeded by the actual 

1 Estimate. 



Is Punishment Powerless against Crime? 311 

facts, could we obtain them. For, increased probability of 
arrest, and added likelihood of conviction, if guilty, would 
necessarily mean increased statistics of serious crime, if such 
existed. Social punishment does not seem to be powerless 
against delinquency. 

But is it not possible that some crimes, and those per- 
haps the most dangerous, have increased ; although this 
does not appear in the statistical totals, because of the 
diminution under other, less serious, forms? This is not the 
case. Certain old and most heinous crimes, such as treason 
and piracy, have almost disappeared, while others, murder, 
homicide 1 and most serious wounding (dangerous to life), 
etc., show a marked decrease. Meanwhile criminals have 
very greatly multiplied under relatively new and essentially 
modern forms of serious crime, such as the many kinds of 
business fraud, forgery and fraudulent bankruptcy. 

The records of these offences tell a most interesting and 
instructive story to those who read aright: a story of chang- 
ing crimes with changing times. Governments are now too 
powerful, too well protected by repeating rifles and breech- 
loading cannon to be overthrown by an angry mob, armed 
with the plunder of the gunshops. "It is surely not a mere 
coincidence that revolutions and insurrections, so frequent 
in Europe until 1848, should have entirely ceased since the 
transformation in arms." 2 A German socialist, Bebel, gave 
the true reason for this great change, when he said, in 1890: 
" I have already told what the result of a revolution would 
be, carried on by 200,000 men at most, in this epoch of 
repeating guns and Maxim cannon ; we should be miserably 
shot down like sparrows." Armed rebellion has become too 
dangerous and too hopeless a form of crime to be indulged 
in. The traitor, as a criminal, has practically ceased to exist. 
Social pressure has been eminently successful against him. 
1 See next page. 5 Seignobos, p. 675. 



312 



Murder and Homicide 



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Is Punishment Powerless against Crime? 313 

The seas have been swept clean of pirates, for the vast 
development of international trade and commerce made this 
absolutely necessary, and the navies of the civilized world 
speedily accomplished the task. Modern weapons and pow- 
erful explosives have brought us peace at home and peace 
upon the ocean. Are we learning to love peace now for its 
own sake? Crime is certainly taking a less impulsive and 
passionate, a more crafty and cautious form. Men are 
learning to curb their tempers under the rule of law. Not 
only is the hasty blow that causes death, or danger to life 
and limb, more rare, but common wounding by cuts and 
blows — which seemed too natural and human and unimport- 
ant to be punished as crime until modern times — this also, 
with our growing sense of mutual rights and duties, in more 
peaceful times, has been made widely criminal ; and for 
some nations, as in England and even passionate Italy, the 
large totals of such crimes show a decrease — a marked de- 
crease in proportion to population. (See table on next page.) 
Notice the very large amount of serious wounding in 
Austria, and Spain (where the numbers would seem far 
larger in proportion to the population), as compared with 
the small number of convictions for such offences in Eng- 
land, Germany and France. But in the last named country, 
the practice of correctionalization is probably responsible for 
the practical disappearance of serious wounding from the 
statistics ; such offences being generally transferred to the 
jurisdiction of the correctional tribunals, and included 
among the lighter cuts and blows. Naturally, also, the 
increase in medical skill, and in the promptness of medical 
attendance among all civilized nations have contributed 
largely to decrease the number of wounds now dangerous 
to life and limb, and also the number of homicides, by 
putting many cuts and blows into a less heinous category 
of crime. 



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Is Punishment Powerless against Crime? 315 

Germany. A careful study of the great recorded increase 
of crime in Germany, under the less serious forms of wound- 
ing, political offences, fraud, delites of immorality and lust, 
reveals two most interesting facts. 

First. That this multiplication of criminals is directly 
traceable to the rapid progress of the nation from a less to 
a more complex civilization ; to the great wave of industrial- 
ism now sweeping over the land, crowding the population 
into factory towns and large cities, those centres of modern 
progress, culture, democracy and enlightenment; and to the 
consequent greatly increased interest of the masses in the 
political, social and economic problems of the day. 

Second. That many minor cuts and blows are being 
changed, even now, in Germany, from mere torts, prose- 
cuted or left unpunished at the pleasure of the person 
injured, into crimes, punished by society as wrongs against 
the nation. The old laws of tort, relating to such minor 
harms to the person, have not been repealed, but offences 
under them have only just about kept pace with the growth 
of population. The great increase in such cuts and blows 
has been placed by society, because of increasing need for 
repression, under the head of crime. Judicial and penal 
authorities, representing the nation, have been interpreting 
more rigorously the laws relating to perilous (gefahrliche) 
wounds; which, although not really serious, are punished as 
true crimes under the Code. Under this head have been in- 
cluded not only cuts with a knife or other dangerous weapon 
or instrument, but even slight blows or injuries occurring in 
wordy quarrels or disputes, which frequently arise where 
many people are closely crowded together. It will be re- 
membered that in the early years of the nineteenth century 
such conduct was not yet criminal in England. A clearer 
perception of what is necessary for the general welfare under 
new industrial conditions has occasioned this great change 



316 City Crime a?id Country Crime 

in both nations ; bringing with it increased social pressure 
to stamp out these evil acts, creating new forms of crime 
and rapidly enlarging the number of criminals. 

The German statistics show far more crime in the city 
than in the country. Thus, from 1891 to 1895, there were 
1080 crimes per 100,000 inhabitants in the country districts, 
while in the cities (of more than 20,000 people) the propor- 
tion was about 1400. Moreover, the character of the 
delinquency is very different: in the city crimes of fraud 
and cunning, light wounds and rebellion against authority ; 
in the country crimes of ferocity and malicious damage. 

Condemned per 100,000 population (1891-95). 

Crimes. City. Country. 

Violence and outrages against authority .... 83 33 

Light wounds 68 56 

Outrages against chastity 12 4 

Procuring 31 2 

Serious theft 37 20 

Simple theft 68 56 

Unlawful appropriation 109 37 

Fraud 63 32 

Serious wounding 1.3 2.1 

Less serious wounding 126 160 

Malicious damage 36 40 

The statisticians report that the great prevalence of light 
wounds in the German cities appears to be provoked by the 
crowding of the population, the change from a quiet agri- 
cultural life to a nervous industrial existence, and to the 
abuse of liquor ; while greater participation in politics in- 
duces violence and outrages against authority, and increased 
delites against the state and public order. 

The crowding of men and women together in factories, 
together with the increasing economic difficulty of establish- 
ing and maintaining a family, have occasioned a large in- 
crease in delites of immorality and lust, the figures having 



Is Punishment Powerless against Crime? 317 

mounted steadily from little more than 3000 condemned in 
1882-85 to over 4000 in 1891-95. Other crimes against the 
family (bigamy, incest and adultery) are also increasing, 
while the number of those condemned for procuring is 
mounting higher and higher ; but this last is in part caused 
(as the official publications attest) by increasing social 
pressure to crush out this form of evil, through the more 
rigorous vigilance of the police. 

From 1882 to 1895 fraud increased in Germany by fifty 
per cent., fraudulent bankruptcy by forty-five per cent., and 
forgery of deeds by forty-five per cent. Meanwhile all forms 
of theft, serious and simple, while varying from year to 
year, show at the end of the period a diminution in propor- 
tion to population, and a very slight increase in the actual 
number of criminals. 

All these crimes are more numerous in the cities than in 
the country, as will appear by a glance at the table just 
given. When we note, for each manufacturing province and 
state of Germany, the great increase of crime among young 
men and women, as their number in the factories increases, 
can we doubt that the rapid growth of Germany into a great 
industrial civilization, with its accompaniments of factory 
and city life, is very largely responsible for the astonishing 
increase in the nation's crime, from 329,968 convictions in 
1882 to 463,584 convictions, only fifteen years later, in 
1897? Especially is this evidence convincing when we re- 
member how very large a proportion of all criminals are 
young, and that the years sixteen to eighteen are probably 
the most critical period of a person's life, deciding for many 
whether the later career will be good or bad, socially useful 
or criminal. 1 

1 Undoubtedly there are many other causes influencing delinquency in Germany 
and other great modern nations beside industrial development and the increase 
of city life. It is only wished to lay stress upon these very important causes at 
this time. 



3 1 8 Factoi-y Life and Crime 

Proportion of Young Men and Women Employed in Factories and 
Condemned for Crimes in Germany. 

Young people of both sexes Young people of both 

from 12 to 18 years of age sexes from 12 to 18 

States and Provinces. employed in factories (per years of age con- 

10,000 inhabitants; . demned for crimes and 
delites (per 10,000 in- 
habitants.) 

1885. 1890. 1895. 1885. 1890. 1895. 
Prussian Provinces — 

Brandenburg, including Berlin. 250 313 361 63 68 83 

Prussian Saxony 280 316 419 55 59 66 

Westphalia 462 550 620 33 36 39 

The Rhine Country 447 535 615 36 38 50 

Prussia 259 303 359 55 58 65 

Bavaria 155 206 257 65 77 90 

Saxony 797 1,014 1,084. 5° 66 81 

Wurtemburg 284 344 408 45 48 53 

But this industrial development and growth of cities in 
Germany — is it so very great and sudden as has been here 
implied? Surely we cannot doubt this either when we con- 
sult the facts. 

The transformation in the life and product of the Germanic 
nation in fourteen years (1882 to 1895) seems almost 
magical. In 1882, of every 1,000 persons in the population, 
188.8 were engaged in agriculture and 161. 2 in industry. In 
1895, Du t *63.8 were engaged in agriculture, while 195.7 
were in industry — a veritable revolution. Notwithstanding 
the large growth of population, which increased by seven- 
teen per cent, in these fourteen years, or from forty-five to 
fifty-two millions, " the agricultural class decreased by 724,- 
J48, while the number of operatives increased from 7,340,- 
789 in 1882 to 10,269,269 in 1895, or by about forty per 
cent. Large manufacturing establishments, employing from 
fifty-one to many thousands of operatives, numbered 9,974 
in 1882 and 18,955 m l ^9S- The annual output of coal has 
mounted from 59,1 18,000 tons in 1880 to 103,958,000 tons 
]n 1895. The total product of pig iron has been doubled in 



Is Punishment Powerless against Crime? 319 

these sixteen years : from 2,729,000 to 5.464, oootons. 1 Mean- 
while the growth of the city population of Germany has 
been more rapid than anywhere else upon the continent of 
Europe. 

It is during such times of fundamental change, when old 
business ways are becoming unprofitable, and large new 
opportunities for gain arise ; when family bonds are broken 
up, and the young and strong depart with hope into untried 
fields of labor; when old legal safeguards are no longer 
sufficient, and new laws have yet to be introduced, and men 
in haste for riches may hurt society and their fellow-men 
almost with impunity, without fear of criminal prosecu- 
tion ; when the new liberty is very dear and largely mixed 
or confused with license — it is precisely then that the social 
standard of right action is rapidly elevated and enlarged; 
society is educated by the perception of its own necessities; 
new forms of crime are most rapidly created to guide the 
strong new life into healthy modes of helpful development, 
and the multiplication of criminals goes on apace, and this 
in the wisest and most prosperous of nations. 

But we must not think that the persistent increase of 
crime, under the special forms now prevalent in Germany, 
is a necessary and inevitable accompaniment of industrial 
civilization, at all times and in all its stages. This would be 
manifestly untrue, as is evident from the decrease of these 
same crimes of violence in 'England. It is rather the be- 
ginning of the new life, the formative and transition period, 
the time of most rapid development and sudden progress to 
a higher, more complex civilization, that occasions the 
multiplication of criminals. This was as true of England 
half a century and more ago, as it is true of Germany to-day. 

1 The figures for 1870 were 34,003,000 tons of coal and 1,391,000 tons (metric 
of 2,204 lbs.) of pig iron. 



320 Transition Periods and Crime 

Lock up a healthy country boy in a city house and he 
will be irritable and ill-behaved at first. Time alone can 
wont him to his new and physically cramped surroundings. 
Yet the city education may make a more useful man of him, 
for the city is the chosen home of modern energy, science 
and skill, as well as the great laboratory of practical Chris- 
tian charity, uplifting helpfulness and brotherly love. The 
English people have had time to settle down into the forms 
of industrial and city life, which are no longer new, strange 
and irksome to them. For the displacement of the popula- 
tion from the country to the city, from agriculture to manu- 
facturing and trade, began in England one hundred years 
ago, and had its greatest development about the middle of 
the nineteenth century; while in Germany the transforma- 
tion is far more recent and more sudden. English operatives 
now feel the benefit of the factory and mining legislation, and 
of many other protecting and educating laws, which have 
safeguarded individual life and liberty, increased happiness 
and the social well being, while greatly multiplying criminals. 
In Germany, such industrial and social legislation is being 
even now very rapidly introduced and extended. It is the 
period of sharp transition — of rapid growth — that hurts most. 
The stronger the nation, the more rapid the growth, the more 
independent and liberty loving the citizens, the larger the 
resulting criminality is apt to be. 

But meanwhile, in the midst of all this growth of delin- 
qency, many of the old and most serious crimes are, as we 
have seen, decreasing. Recent statistics of murder and 
homicide for the leading nations of Europe point to some 
very interesting conclusions, when compared with the rank 
of these nations in the modern industrial world, and the 
greater or less diffusion of education among them. 



zuerl 


ess agai 


nst L 


rime / 


321 


rmany. 

2. 


France. 
3- 


Austria. 
4« 


Italy. 

5- 


Spain. 


583 


485 


253 


121 


85 


96% 


85^ 


55% 


47% 


28% 



Industrial rank (value of 

manufactures produced 

yearly in millions of 

pounds sterling, 188S). 820 
Percentage of adults able 

to write (1S89) 90^ 

Convictions for murder 

and homicide per 1,- 

000,000 of inhabitants 

(average for 10 years, 

1886-95) 5- J 3 5-45 "-55 «5-4* 76.11 44.70 1 

Murder and homicide are the crimes of races backward in 
the diffusion of education, and the development of modern 
industrial life. They are crimes of the country rather than 
the city ; crimes of a decaying civilization, or of the rough 
edges of an advancing civilization. Within low savage tribes 
such actions are not crimes. They are left to individual 
vengeance. No idea of moral wrong is connected with 
them at first ; no sense of a common injury to society, 
awakening in the community the passionate longing for 
revenge. Until quite late in history, no distinction is made 
even between wilful murder and accidental homicide, and 
both are simply the private affairs of the families directly 
concerned. Very slowly, and long after the coming of 
Christianity among the Anglo-Saxons, did this people grow 
into the belief that murder and homicide are seriously harm- 
ful to the state, and should be punished as crimes. "Open 
morth " (secret homicide), was the first of these evil acts 
thus made distinctly criminal, and even then, it was probably 
the unfairness of the attack, more than the resulting death, 
that originally induced social vengeance ; just as highway 
robbery remained even honorable, long after society had 

1 It is very doubtful whether the law is as strongly and widely enforced in Spain 
as in Italy, which may account for the smaller proportionate number of homicides 
recorded. 



322 The Dreaded Maffia 

resolved to punish, and succeeded in punishing various forms 
of secret theft as crime. 

Distinctive characteristics of the modern criminal are his 
insistence upon the right of private vengeance, 1 and his firm 
belief that might makes right, that to the victor belong the 
spoils, no matter how the victory is won. This was also the 
glory of the warlike hero of the "golden days," the robber 
baron of mediaeval ages, and to a large extent of the modern 
politician, with the creed that " politics is politics," and 
who is in "the business" for what he can "make" out of it, 
for himself and for " the boys," his heelers. This has been 
distinctly the creed of the Sicilians and Sardinians in our 
own time. Assassination, highway robbery and cattle steal- 
ing were certainly not crimes among them until very recent 
years. Everywhere was found the strife between classes ; 
everywhere ignorance, superstition and suspicion, with the 
strong conviction that "there is no justice, but only a goad 
for the poor," and that "the best way is to act for oneself," 
for "summary and private justice is better than that of the 
government, v/hich is slow, expensive and evil disposed." 2 
Hence the dreaded Mama: which is, properly speaking, not 
an association, with statutes and officers ; but a moral union, 
a tacit consent, traditional among the peasantry, to maintain 
the rights of vengeance as they have inherited them, to 
impose upon the weak and to resist the strong — especially 
the government — not openly, but with concealed, impassive 
force. "They will follow a man for months waiting for a 
fitting time to strike, when an alibi can be proved easily. 
The whole country knows the author of the murderous deed, 
beholds the meshes in which justice is entangled, and when 
it fails they are all happy. Worse yet, murder was done in 
open day, on Sunday, on a public road, among a hundred 

1 Giddings, Principles of Sociology ; p. 128. 
J Alonzo, " Maffi " (1885). 



Is Punishment Powerless against Crime 



c^o 



persons. Nobody saw anything. No one knew what was 
going on. What was it? " Una Sparatina." 1 

Highway robbery is the perfected work of the sea 
coast Maffia. as cattle stealing is the specialty of the inland 
agricultural districts ; with these go assassination and homi- 
cide ; and all these deeds were not crimes until recently, for 
the Sicilian people not only did not punish such offenders, 
but even united to uphold and maintain them against the 
nation's laws. 

Nor was it only in the islands — Sicily, Sardinia and 
Corsica — that such misdeeds were prevalent and unrebuked. 
They were common in many mountainous districts of the 
continent, in Spain and Italy, as well. Since the coming 
of a strong central government in Italy, great efforts have 
been made to crush out these ancient forms of evil. The 
country districts are filled with gendarmerie — the roads are 
patrolled. The assassin, the brigand, the highway robber, 
have been hunted down and punished by society. Their 
acts have been made crimes, and in northern and central 
Italy, where industry, commerce and education are rapidly 
developing, such offences are now few in number. But in 
Sicily, where the people, in blind ignorance and fear, have 
all along protected such men and opposed a social barrier to 
their public punishment, the task before the government is 
a very difficult one — not to be solved perhaps until the day 
of popular enlightenment, and of the coming of the modern 
industrial arts among them. 

The number of homicides in Italy, as a whole, has de- 
creased by more than one-third during the seventeen years 
from 1880 to 1897, and this large diminution is a marked 
characteristic of the recent movement of crime in Italy. In 
Spain also, the numbers show a considerable decrease, 
although it is very doubtful if the law is enforced as strongly 

1 Ibid., Archivio de Psichiatria, vi, 430-440. 



324 Race and Crime 

there as in Italy. Among the other nations of Europe, 
murder and homicide have long since become very excep- 
tional crimes, and they are decreasing still. 

Many people associate the various forms of criminal 
delinquency with different races ; as, crimes of passion and 
physical violence with the hot-blooded Latin race, and 
cooler, more calculating crimes with the nations of northern 
Europe. But, in reality, the character of a nation's crime 
depends far more upon the degree and form of social 
development attained, than upon differences of race and 
geographical position. These deeds of murder, brigandage 
and robbery, so very prevalent even now in parts of Spain 
and Italy, were no less abundant in England a few centuries 
ago. In the United States such actions are more numerous 
among the ignorant, degraded and brutal " white trash" and 
low negroes of the South, and in regions of abandoned 
farms in New England. They have accompanied the march 
of civilization westward, and are very prevalent on the fron- 
tiers, where social life is rough, and physical strength and 
ability to shoot well and quickly are more highly esteemed, 
and indeed far more necessary, than many of the quiet and 
more sober virtues of the Eastern States. 1 

In general, there are three distinct stages in the history of 
any action which becomes a crime : 

First: The action is not a crime. It remains entirely un- 
punished, and no idea of moral evil is connected with it; or 
it is repressed only by individual and family vengeance, and 
is essentially a private affair. 

Second : Society grows into the belief that such conduct is 

1 Crime at Cape Nome, the new gold region of Alaska. San Francisco, 
July 8tb, 1900. (In New York " Sun," July 9th.) "According to a letter just 
received here, crime is rampant at Cape Nome. The writer of the letter, who is 
F. C. Graves, a prospector, states that ' murder is an every-day occurrence ' and 
suicides ' average three or four a day. 1 " 



Is Punishment Powerless against Crime? 325 

bad for the general welfare. How? The act is recognized as 
an evil — perhaps a sin — at first, by the wiser, the more in- 
telligent, more Christian portion of the community. Others 
are converted to this belief. Society resolves upon punish- 
ment, and gradually succeeds in inflicting it, thus making 
the action a crime and multiplying criminals ; educating, by 
this means, the lower masses of the people into the feeling 
and the knowledge that such conduct is bad for them, bad 
for all, and wrong — in a word, raising the social standard 
of morality, advancing civilization through crime. 1 

Third : Where punishments are wisely chosen, and the 
nation strong and progressing in civilization, social pressure is 
generally successful in diminishing the number of offenders 
under this (now) old form of crime; and sometimes, with 
the growth of knowledge and changed conditions of life, this 
kind of criminal act disappears from the statistics. The 
nation has conquered — has progressed. This evil has prac- 
tically ceased to exist. Life is on a somewhat higher plane. 
Man has become more truly social. 

Curious light is thrown upon social conditions in thirteenth 
century England, by a discussion among the lawyers in the 
time of Bracton, whether the breaking of teeth could be 
punished as crime under the law. " Everything whereby a 
man is disabled from fighting is a mayhem. But what 
shall be said of him who has his teeth broken ; if the break- 
age of teeth is to be adjudged a mayhem?" And the deci- 
sion was : Yes, " if they are fore-teeth, . . .for teeth of 
this kind assist much to victory." 2 A man was important 
to the community as a fighting animal, and as such was to 
be socially protected. He who disabled his fellow man from 
active service to the nation in time of war, or in maintaining 
the peace and pursuing criminals at home, was to be con- 

1 Of course this is but one of the great means by which civilization progresses. 
1 Bracton, f. 145, b. 3. 



J 



26 O^imes against Property 



sidered a criminal so far as the law could make him one. 
Breaking of the back teeth was not crime. A bruise, or 
swelling, from a stick or stone did not count; neither did 
what was then termed a graze. The wound must be of 
some very considerable length and depth — measured by 
inches — before the law courts would take any notice of it 
whatever. Pain and disfigurement hardly entered into the 
consideration at all. Such was happy England in the good 
old times — "the golden days." Have we not progressed 
somewhat? Now, the enforcement of a social penalty has 
made practically all assaults upon the person criminal. A 
man shall go about his business where he will, in safety, for 
the social welfare demands that this shall be so. 

Turning now to crimes against property, we find that such 
offences, in all the great industrial nations of Europe, divide 
naturally into two main classes with strikingly different 
tendencies ; the one class remaining stationary, or even 
decreasing slightly, while the other rapidly increases. The 
first class includes robbery, extortion and theft — old forms 
of crime. In the second are the many forms of fraud, forg- 
ery and fraudulent bankruptcy — essentially modern forms of 
serious delinquency. In general, the worst of the ancient 
offences, robbery, extortion and most serious theft, show 
a decrease, especially when the growth of population is .con- 
sidered ; while the total of all thefts punished has remained 
practically the same for many years, in proportion to popu- 
lation, for the nations of Europe we have been considering. 
The figures quoted in these tables of special crimes are 
always those of convictions, which would be more likely than 
any other statistics of these offences to show an increase, if 
such existed. 1 

1 Throughout the latter chapters of this book,' wherever statistical evidence has 
been deemed necessary, the author has tried to select those tables which (with 
equal probability of truth) would be less likely than others to favor the conclu- 
sions he himself believes to be the true ones. 



Is Punishment Powerless Against Crime? 



327 





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Is Punishment Powerless agai?ist Crime? 329 

At any rate the statistics prove that the leading civiliza- 
tions of Europe have not been growing worse, so far as these 
ancient forms of crime are concerned. Social punishment 
has apparently been successful against them. But under 
fraud, forgery and fraudulent bankruptcy, modern forms of 
criminal offence against property, the totals of convictions 
are mounting higher and higher in all the strong industrial 
nations of to-day. The forms of these crimes are ever more 
numerous, for new laws are continually increasing them. 
Not many years ago such conduct was, for the most part, 
not yet criminal. They are characteristic offences of our 
modern industrial civilization, hardly found in such nations 
as Spain, which are laggards in this development. They 
are acts most strongly opposed to business security and 
prosperity, to the continued development of modern busi- 
ness methods ; and therefore they have been made serious 
crimes, and many thousands of men criminals, since the com- 
ing of modern forms of trade and commerce, and the wide- 
spread introduction of credit instruments and certificates of 
indebtedness — those essentially modern forms of wealth 
investment. 

Crime is essentially a social product, increasing with growth 
in knowledge, intelligence and social morality, along lines of 
greatest resistance to the new forces and forms of this higher 
social life. The upward progress of civilization has been 
even more strongly marked by the creation of new forms of 

When a work has advanced thus far towards its completion, it is inevitable that 
certain central ideas should be firmly seated in the author's mind, and he wishes 
to guard as carefully as possible against biased judgment and any distortion of the 
evidence. However, in this connection, it should be said that a careful study o* 
the Judicial Records preceded the writing of any chapter in this book, while the 
theory here presented was as yet unformed and nebulous. 

These statistics may be found grouped in convenient form for reference in 
Prof. A. Bosco's Sulla Statistica delta Delinquenza in Vari Stati d'Europa 
(1898). 



330 Records of Social Progress 

crime, and the consequent multiplication of criminals, than 
by the successful punishment and diminution, or extinction 
of criminals under ancient forms of anti-social conduct. 
Great reforms have been introduced by criminal laws and 
made victorious by social punishment. In the next chapter 
we shall behold some of the records of these deeds, this 
social progress to better things. For the statistics of the 
criminal classes are like the sand and clay of the old, old 
earth, forming layer by layer, strata by strata : 

" Wherein the footprints of their age 

Are petrified forever." 

We must " not fear to follow out the truth 
Albeit along the precipice's edge." 
Surely, surely, we should have " no dread of what 
Is called for by the instinct of mankind." 

"The world advances, and in time outgrows 
The laws that in our fathers' day were best; 
And, doubtless, after us, some purer scheme 
Will be shaped out by wiser men than we, 
Made wiser by the steady growth of truth. 

"Get but the truth once uttered, and 'tis like 
A star new-born, that drops into its place, 
And which, once circling in its placid round, 
Not all the tumult of the earth can shake." x 

1 James Russell Lowell, A Glance Behind the Curtain. 



CHAPTER XIV 

THE TREND OF CRIME IN MODERN TIMES. A BRIGHTENING 

OUTLOOK 

THREE of the most striking characteristics of life in modern 
times are its complexity, its speed, and its liberty of thought 
and action, as compared with all the previous ages of human 
history. We are all becoming specialists to-day, every 
man dependent upon his fellow-men for almost everything 
he needs and uses. The food we eat, the clothes we wear, 
the knowledge that fills our minds — these come to us from 
the four corners of the earth, through the hands and brains 
of multitudes of human beings, for whom we also labor. 
Even the religious cravings of our nature, those highest and 
most carefully guarded yearnings of man's soul, are nour- 
ished by the truth of God culled now from all the world. 
The man who makes the hundredth part of a watch, the 
twentieth part of a shoe or of a pin, the spinner, the carder, 
the weaver, the employer, must all rely upon the efficiency, 
the activity, the honest dealing of their fellow laborers to 
find a profitable market and secure a continuous demand 
for the goods produced. How very different, all this, from 
the conditions of life among savages, where each household 
— the economic unit — is sufficient, almost, unto itself. How 
very simple in comparison seems the life of the mediaeval 
hamlet, clustered around its protecting castle, where the 
indwellers produced for themselves nearly everything that 
was required, food, raiment, coats of mail, security and 
entertainment. 

(331) 



332 Sensitiveness of Modern Life 

Modern man must depend upon his fellow man, must rely 
upon society as a whole, to an extent undreamed of even by 
our recent ancestors ; for the struggles and the strikes, the 
business enterprises and speculations, the thoughts and the 
demands of men we have never known, living a thousand 
miles away, may destroy our means of livelihood and ruin 
our life's happiness, and the individual is powerless to defend 
himself. Are we therefore slaves, tossed to and fro and 
crushed by blind titanic forces, the offspring of what is 
known as civilization? Surely not. Where the strength 
and wisdom of the individual, the family, or the little associ- 
ation are insufficient, there the social might steps in to 
define and regulate the mutual relationships and duties of 
men, to defend the right, to educate the people, to promote 
upward progress toward the social ideal — the ideal of the 
national type — by wise laws and penalties, strongly enforced, 
creating crimes and multiplying criminals. The more sensi- 
tive becomes the social body, the nation, to rights and wrongs* 
great and small ; the more far-reaching and contagious is the 
influence of evil conduct among the classes and the masses 
of the population, the farther must the strong arm of the 
criminal law be extended, for the social welfare demands that 
this should be so. 

Higher evolution means great and increasing complexity, 
specialization, interdependence, and consequent sensitiveness 
of the social life. The harm to one individual becomes more 
and more the injury to all. Society recognizes this, and the 
extension of the field of crime, the field of prohibited action, 
goes on apace. Nor does the criminal law stop, in modern 
times, with negative commands ; it adds positive orders as 
well. Not only, thou shalt not kill, but, thou must have 
thy children educated. Not one of the great, progressive 
civilizations has been able to escape from the necessity of 
increasing, very largely and persistently, its criminal statutes 



The Trend of Crime in Modern Times $33 

during the nineteenth century. Naturally, the most crying 
evils are first made crimes. Afterwards, the lesser evils be- 
come more noticeable, and their increasing number and 
heinousness demand public attention and punishment. It 
becomes criminal for taskmasters to degrade women and 
children to the level of the brute for mere money gain. 
Factory and mining legislation stamps out these great abuses 
of the new industrialism. The horrors of train wrecking 
cause intense public indignation and the enactment of ever 
heavier penalties. Embezzlement is made a crime. Society 
begins to punish fraudulent trustees, and those who seek to 
thrive by newly discovered forms of fraud and forgery. 
Common assault and battery becomes a misdemeanor; 
likewise drunkenness. The police of highways, wagons, 
wharves and docks assumes very large proportions. Sani- 
tary and public health statutes are enacted and must be en- 
forced. Public morality is protected. Perilous, but neces- 
sary occupations are made as little dangerous as possible, 
by safeguards compelled by Jaw. Cruelty to children and 
to animals is made increasingly criminal. Public education 
becomes compulsory. Every important new invention en- 
larges sooner or later the field of crime. The harnessing of 
steam, electricity and compressed air for the service of men 
has greatly increased our criminality. How then? Is there 
anything essentially evil and maleficent in these great forces 
of nature? Surely not. But." their application to modern 
life opens up new sources of temptation and reveals new 
sources of danger. A host of modern inventions or 
manufactured articles having a market value constitute a 
new opportunity for the thief." The modern highway 
robber may get a message from the telegraph wire, " worth 
more to him than a well-filled purse." The stealing of 
power or light from electric lines by tampering with' the 
meters, these are petty acts of crime easily and often com- 



oo- 



Multiplication of Misdemeci7iors 



mitted. But not only has the theft of electricity been made 
criminal. Even its gift to certain persons and its acceptance 
by them are declared crimes in some communities. Thus, 
in Nebraska, officers or agents of telephone and electric 
light companies " are forbidden to give free or reduced rates 
to any city or village official," under penalty of heavy fine 
and imprisonment for all parties concerned. Where over- 
head electric wires crowd our city streets, kite-flying be- 
comes a crime, for the strings, entangled in the wires, divert 
the current, causing loss of valuable power and interruption 
of business. Tn addition to the ancient crime of horse- 
stealing, we have, in modern days, the theft of bicycles and 
automobiles. Stealing of rides on railway cars is prohibited 
by many statutes, but ticketless tramps still travel at their 
leisure, despite the laws. Jumping on or off cars in motion 
is likewise prohibited, and it is a criminal offence for railroad 
companies to charge extortionate transportation rates, or to 
discriminate against individuals. The introduction of pe- 
troleum " blazes luridly in penal codes." The discovery 
of anaesthetics v/as a very great blessing to suffering human- 
ity ; but New York State has recently made the possession 
of such drugs, with intent to administer to any person, with- 
out the direction of a duly licensed physician, a felony, 
punishable by ten years' imprisonment at hard labor in state 
prison. 1 Laws prohibiting the adulteration of food, candy 
and milk are very numerous and necessary. Social pressure 
against gambling is increasing. Of liquor laws there are a 
legion. Cigarettes must not be sold or given to minors ; 
and children must not frequent pool or billiard rooms, un- 
less with the written consent of their parents. A multitude 
of other new social prohibitions could easily be mentioned 
here, but to what use? The reader will find them on every 
side of him in real life, yet they probably do not worry or 

1 Maximum sentence. 



The Trend of Crime in Modern Times 335 

annoy him greatly. Many of them certainly create new 
crimes and multiply criminals, for the laws are enforced. 
Others, as certainly, do not have this result; for society 
does not, and sometimes does not wish to inflict the penal- 
ties. This tendency is shown in an extreme and somewhat 
ludicrous form at the close of an interesting article by S. J. 
Barrows upon "New Crimes and Penalties" in the United 
States. 1 

" What would Draco and Solon have thought of such laws, 
. . . after reading, as the writer has done, 30,000 pages of 
legislation in the forty-five states — all of it less than two 
years old? Suppose, for instance, that Draco took it all 
seriously, and imagined that all the laws we passed were 
meant to be enforced. Suppose they really were enforced, 
and that the Greek lawgiver should make a tour of the 
prisons and jails of the United States. Imagine him asking 
a score of convicts why they had been convicted." 

"I," said an Alabama man, "have been sentenced to thirty 
days for jumping off a train while in motion." "I," said a 
Virginian, " rode a horse on the sidewalk through an un- 
incorporated village, and am in prison for sixty days." "I," 
said another Virginian, "killed a partridge on the second 
day of February in Cumberland county, and am in prison 
for thirty days." "I," said a California woman, "am a 
nurse, and I neglected to report to a doctor that a baby's 
eyes became inflamed within two weeks after birth. I am in 
prison for six months." " I," said a Tennesseean, " ' lobbied ' 
with the legislature." "You mean bribed it?" asked Draco. 
"Oh, no, I just 'lobbied,' but I did not address my argu- 
ments 'solely to the judgment,' and so I am 'in' for five 
years." An Adonis from the same state curled his mustache : 
" I fell in love with a young lady at a Tennessee boarding 
school. In a rash moment I ventured to loiter on the op- 

1 The Forum, Jan., 1900, pp. 539-41. 



j>y 



Neiv Crimes and Penalties 



posite side of the street, and I threw a kiss to her. Now I 
have thirty days to serve in the county jail." 

" By Jupiter ! " exclaimed Draco. " It is all very well for 
you to swear by Jupiter," said a man from New Jersey ; 
"but I made the mistake of swearing by the name of Jesus 
Christ, and so I have two years to serve." "I," said a New 
York man, "tampered with an automatic ballot machine, and 
for the next five years I shall labor for the benefit of the 
state." "I," said another New Yorker, "was calling on a 
friend in the upper story of a sky-scraper, and I ventured to 
drop some of my advertising circulars down the letter-chute. 
Unfortunately, I had forgotten to address them. So I got 
five days." "I," said a New Jersey man bitterly, "did not 
drop my ad. into a letter-chute ; I wish I had. I made the 
mistake of putting it up on the Palisades, and I am sen- 
tenced to three years for disfiguring the landscape." "As 
to advertising," said a lawyer from Washington, "I ventured 
to solicit divorce business by an advertisement in a news- 
paper, and now I shall read my newspapers in jail for the 
next six months." " I can go you one better," said a Penn- 
sylvania criminal. " I thought it would be a compliment to 
my country to print my advertisement on a picture of the 
American flag. The court thought differently, and I am in 
seclusion for six months." " You ought to live in So.uth 
Dakota," said a bystander. " I did the same thing, and I 
got off with a five-dollar fine." " But be thankful you do 
not live in North Dakota," said another criminal. " I ven- 
tured to organize a 'trust.' I thought I might promote 
trade by lessening competition ; now I have ten years in 
which to reflect upon my conduct." " I," said a Wisconsin 
man, "sold some impure ice, and I shall spend the winter in 
the county jail." " Well ! you have my company," said a 
Wisconsin baker. "I ventured to sleep in my bakery. My 
first offence cost me $50 a night; and the second $100 a 



The Trend of Cri7ne in Modern Times 337 

night. For the third offence I had to pay $250 a night. 
And now, to even things up, I am lodging six months in jail, 
at the expense of the state." "It all happens in the course 
of business," said a Michigander. " I thought it was all 
right to buy an empty beer bottle stamped with the brewer's 
name. My mistake costs me ninety days in jail." . . . 
"Well, be thankful you don't keep a boarding house in Vir- 
ginia," a Southerner remarked. "I failed to put up a sign 
which the law said must be in Roman letters not less than 
one inch square, ' Imitation Butter Used Here,' and now I 
am a jail-boarder myself for six months." . . . 

Perhaps, to close the interview, which might go on almost 
indefinitely, we can imagine two prisoners from Tennessee 
saying: "Well, you are all low-grade criminals. You are 
nothing but misdemeanants ; we have the honor to be fel- 
ons." "You are, perhaps, murderers," said Draco, his face 
brightening at the thought of some crime with which he 
might be familiar. " Yes, we are both murderers. I mur- 
dered some fish with dynamite — a Greek word, you know — 
and am ' in' for three years. And my friend here murdered 
some trees without the consent of the owner, and he also is 
'in' for three years." 

Would Draco think the world had grown better, or that 
it had grown worse, and would he note it as an occasion for 
modern thanksgiving that the Americans live under milder 
laws ? 

One great difference, however, these ancient law-givers 
would find between their time and ours. The laws of the 
American people bear a very close and intimate relation to 
their life. Right or wrong, good or bad, they are not im- 
posed by external authority or by an aristocratic class. 
They are made by the people themselves. Whether en- 
forced or not, the laws embody the ethical sentiment of the 
American people, and reflect the spirit and the character- 
istics of American civilization. 



2,3% L iberty and License 

What then? Is modern man becoming helplessly, and 
ever more and more firmly, bound around by the myriad 
twisting and constricting tentacles of a kind of social devil- 
fish — the criminal law — sucking the life and the individuality 
out of him, and preventing growth in almost every direction 
by increasing pressure and punishment? Is this the final 
outcome of our boasted civilization — that the individual 
shall be met at every turn by a prohibitory or a mandatory 
statute : Thou shalt not do this — Thou must do that-— under 
penalty of the law ; no, not even walk upon the grass, under 
pain of punishment as a criminal? Is not this sheer slav- 
ery, and is not savage liberty far better than such bondage? 

Dryden once had a dream : 

" When wild in woods the noble savage ran." 

But how painfully different was the truth. The free, 
untrammeled, primitive man, meeting with his fellows to 
form the "social contract" of Jean Jacques Rousseau, had 
absolutely no existence in real life. The farther back we 
trace human society, the more is the individual savage the 
slave of his superstitious fears, crawling in abject obedience 
under a mass of semi-religious or demoniac observances, 
compared to which the Aztec or Babylonish tyrannies were 
easy and pleasurable. 

Liberty is very far from being a natural, original and fun- 
damental right of man. On the contrary, its history shows 
a very slow and painful development. True liberty has 
been won by man for man in the progress of the ages, with 
the growth of civilization, and by the might of law. It is 
being won and amplified to-day. R 

Do not let us confuse liberty with license. License is 
absolute freedom from restraint. A man may kill himself 
or his fellowman if he wills and has the power. Liberty 

K Following, as the author believes, God's law of evolution for the uplift of 
mankind. 



The Trend of Crime in Modern Times 339 

is also freedom ; but freedom within limits, found necessary 
for the preservation of a like freedom for our brother man, 
and for the maintenance of the general welfare. It is pre- 
cisely such liberty that we are developing in modern times: 
developing by means of law — criminal law. Think of it! 
Freedom of body, freedom of thought and speech, freedom 
of religious worship and belief — these are all modern achieve- 
ments, guaranteed by law to-day. Political and civil liberty, 
the right to vote, the right to own property (especially for 
women) ; industrial liberty also — that is, the right to work 
(in general) where and when one wishes — these are forms 
of true freedom, struggled and fought for through the ages, 
established and still developing under the law to-day. 

The key-note of the nineteenth century, writes Gladstone, 
the great English statesman, near the end of his long life, is 
"Hands off," "Strike off the fetters." Individual liberty, 
freedom of action and of thought, the opportunity to do 
that which seemeth best, have come to man far more fully 
in this than in any former age of the world's history. The 
unyielding, curiously cramping, despotic customs of savage 
races are not for us. Yes, strike off the fetters, the 
swaddling bands of infant societies, the hard, stern rules 
that hold and tame and socialize the brave, but cruel and 
passionate boyhood of mankind ; for the leaders of the 
human race, the great Aryan civilizations, no longer need 
them, or most of them. They have grown strong through 
social discipline. They have learned through long cen- 
turies of drill in nature's school to walk upright, physically, 
mentally, and to some degree morally. It is no longer im- 
peratively necessary, as in ancient days, to unite every 
available social force for the mere preservation of the 
social life against disruptive violence within the group and 
blood-thirsty enemies without, ever eager, ever ready to 
attack at the first evidence of weakness. The world is be- 



34-0 War Decreasing, Crime Increasing 

coming a less cruel, a far safer place to live in. Not only- 
are the rights of fellow-citizens enlarged, protected and re- 
spected, at least within the letter and beneath the shield of 
law, but there are international rights and duties, an inter- 
national customary law as well. We shudder with horror 
when ambassadors, legations, women and children, or un- 
armed and wounded prisoners of war are slaughtered by the 
Chinese ; but the masses of the yellow race regard all such 
as enemies, and think it right to kill them. The preserva- 
tion of the Chinese Empire, the maintenance of its ancient 
religions and ways of life, they believe demand such bar- 
barous actions. Our early ancestors held much the same 
ideas. Even Charlemagne, the great hero of early European 
Christianity, did not hesitate to slaughter thousands of 
brave, unarmed Saxons, who had voluntarily surrendered 
themselves, when he thought the welfare of the Frankish 
Empire and the spread of the Christian religion demanded it. 
Yet, as a rule, he was far more kind and generous to enemies 
than other conquerors of that olden time. 

As the nations grow larger and more civilized the sphere 
of war is becoming gradually more exclusive. That is, 
organized hostilities are becoming practicable only between 
large social groups, and probable only for a comparatively 
few great causes. Meanwhile, the sphere of crime is becom- 
ing rapidly more inclusive. Men who formerly would have 
been enemies, because members of petty, independent, 
hostile groups, have become criminals to-day, through 
inclusion in a single commonwealth. The amount of 
war is decreasing; the amount of crime is increasing. 
Industry and commerce, Christianity and education, are 
strongly opposed to warfare, at any rate between the 
leaders of the world's civilization ; but they are persist- 
ently demanding and securing new social prohibitions for 
the punishment of evils formerly disregarded. The brother- 



The Trend of Crime in Modem Times 341 

hood of men seems less visionary than of old, for the wide- 
spread flowering of Christian love in manifold forms of 
practical charity and wise, uplifting helpfulness, is truly 
marvelous in this our day. Even the rights of animals to 
kindness and the law's protection have been recognized and 
enforced by the humanitarian spirit of the age. Social 
morality is growing increasingly sensitive to little rights and 
wrongs. Small evils are being made crimes as well as great 
ones. The standard of right action, to which every citizen 
must conform at his peril, is being raised far higher than of 
old, and one result of this is seen in the largely increased 
volume of crime and criminals among the nations of modern 
Europe ; while the success of this education through social 
punishment in moralizing and uplifting the people, is plainly 
manifest in the decreasing statistics for many old and serious 
forms of crime, and indeed for many ancient misdemeanors 
also. 

The great nations of the earth have nothing to fear from 
their rapidly increasing totals of criminality. They but 
evidence the rise to higher and higher planes of social 
morality and intelligence, and reveal the care with which 
upward progress is being fostered and safeguarded by the 
creation and enforcement of new and wise criminal laws. 
Even the coming of freedom, that crown of the nineteenth 
century, makes necessary many new forms of crime. Per- 
sonal liberty is a priceless gift, but it is also a most danger- 
ous possession : dangerous both to the man himself and to 
the society of which he is a member. For unless the indi- 
vidual be well developed intellectually, morally and socially, 
liberty is very apt to degenerate quickly into license. Hence 
the absolute necessity for compulsory public education in 
our great modern civilizations. The ignorant weakling may 
drift very easily into minor criminality, while the rebellious 
social laggard will deliberately choose anti-social, selfish con- 



34 2 New Crimes Less Deadly 

duct, and believe he Has the right to do so. Both the 
temptations and the opportunities for such action are be- 
coming ever more numerous; and therefore, society, while 
enlarging the sphere of individual liberty and life in ways 
made possible by the advance of civilization, and now neces- 
sary for its continued progress, must defend itself by the 
large increase and stern enforcement of prohibitory statutes. 

Probably the men of each generation think that the new 
laws of their age create for the most part only minor forms 
of crime. The more heinous evils have long ago been made 
criminal by their ancestors. 1 Undoubtedly we think this 
to-day. The typical crimes of our age are known as contra- 
ventions or misdemeanors ; termed often minor offences, 
although some of these modern forms of delinquency are 
recognized, even now, as no less socially dangerous than 
many ancient forms of so-called serious crime. 2 

Yet, upon the whole, it is surely true that the new forms 
of crime are far less deadly to the social life than are the 
ancient forms. Thus, the traitor is somewhat more danger- 
ous to the community than the forger ; the murderer than 
the man who neglects to educate his children ; the thief than 
the common drunkard. 

On the other hand, new social prohibitions are far more 
numerous, and occasion more criminal acts, than do- the 

1 Thus, when the field of crime was being greatly extended in England and 
Wales, by the summary jurisdiction of justices, and the energy of a disciplined 
army of police — two modes of increasing and widening social pressure — we read 
in the police returns for 1857 {Accounts and Papers, p. ix) : "The offences with 
which this large number of persons were charged represent, in a great degree, the 
vices, rather than the crimes of the population. The offence first in magnitude 
is assault." Common assaults number 60,695; assaults on peace officers, 12,750; 
and aggravated assaults on women and children, 2,584. In 1896 the numbers 
under these three forms of crime are 59,051, 12,315 and 1,743. The decrease in 
proportion to population is, of course, far greater — from 403.44 (1857-61) to 
237.90 (1896). Social pressure seems to be successful here. 

7 See chap, i, pp. 15-16, and Stephen, i, 489. 



The Trend of Crime in Modern Times 343 

ancient penal statutes. In fifty years, from the beginning of 
the reign of Queen Victoria, no less than 5,344 enactments 
have been added to the statute-book; 1 and perhaps nothing 
in the old Laws of the Realm causes more surprise than the 
paucity of legislation, even until the nineteenth century. Is 
it wonderful that the amount of crime has so greatly in- 
creased when such a multitude of actions, formerly unpun- 
ished, have been made criminal under the law? Yet are not 
these prohibitory statutes, in the main, wise and called for 
by changes and developments in social life? Have we not 
grown to believe in the necessity of factory and mining 
legislation, in sanitary laws, in the prohibition of cruelty to 
children and animals, and in compulsory education? Every 
one of these great and wise reforms was introduced, in Eng- 
land and elsewhere, only after long and bitter opposition by 
a large and influential portion of the nation, and not alone 
by the uneducated. 

All the leading civilizations of the world have been ad- 
vancing along this same path ; have been hastening, and 
enforcing this progress upon their people by the creation of 
a multitude of new laws and the rigorous punishment of 
offenders under them. In the German Empire, from 1882 
to 1895, new legislation increased the number of delites, 
punishable under the Code, from 323 to 447, or by 38 per 
cent. The growth of population in Germany is very rapid, 
exceeding that of most European countries, and during this 
period it increased from 45 to 52 millions, or by 17 per 
cent. ; but the number of forms of conduct punished as 
criminal under the Imperial Code increased more than twice 
as rapidly as the population. Do we wonder that the Ger- 
man statistics should testify to a very great and continued 
increase of criminality, " notwithstanding that education is 
so diffused, and the flowering of industry and commerce so 

1 Besant, p. 237. 



344 Legislation of Social Guardianship 

rapid and successful that other nations, even though more 
rich, begin to fear being vanquished?" 1 Nay, it is because 
of these very things, this wonderful development, that new 
penal legislation is necessary; and thus the multiplication 
of criminals is at once both a result of this upward growth, 
and a cause of its continuance, and of the nation's prosperity. 
As the author, just quoted, tells us, in his valuable little 
pamphlet upon "The Statistics of Delinquency in Europe:" 
"The increase of delites (i. e. y new social prohibitions) in 
Germany, both those of the Code and those provided for 
by other laws, has been continuous and progressive. That 
these last have been more than tripled, during less than 
fifteen years, is due to the deliberate intention to extend 
imperial legislation specially concerned with the tutelage of 
the laboring classes ; and it is but natural that infractions 
also should have increased, with the introduction of these 
laws upon the cleanliness and healthfulness of factories, 
upon workmen's insurance and the orderly arrangements of 
labor." 

The growing mass of the criminal population of Germany 
is registered in the official records of the convicted, as 
follows : 2 



Germany. — The Total Number of Convictions for Crime under the 
Imperial Code and Special Laws of the Empire. 



For crimes For crimes 

against against 

the Code. special laws. 

1882 323»839 6,129 

1883 3 2 4»4io 5,718 

1884 340,l8l 5,796 

1885 336,259 6,828 

1886 345.628 7,372 

1887 348,595 7.744 

1888 342,45° 8,215 

1889 360,321 9,323 



For crimes For crimes 

against against 

the Code. special laws. 

1890 372,160 9,290 

1891 381,816 9,248 

1S92 410,828 n,499 

1893 414,657 15.746 

1894 427.657 J 8,453 

1895- 433.697 20,514 

1896 434.359 22,640 

1897 439.535 24,049 



1 See Bosco. 

a See Statistik des Deutschen Rcichs, 1888, 1893, 1896-8. 



The Trend of Crime in Modern Times 345 

The persistent coming of this social and industrial legisla- 
tion — this legislation of social guardianship — is one of the 
most distinctive characteristics of the modern state. Not 
one of the great industrial civilizations of Europe has been 
able to escape from the necessity of creating such laws in 
ever larger amount. This is no less true of England, the 
home of free trade, where business interests have prospered 
so long and very greatly under doctrines of individualism 
and laissez faire that they have been exalted almost into a 
national creed — than it is true of Germany, where the oppo- 
site doctrine of paternal oversight and regulation, even of 
the minutest details of life, is accepted as a most important 
function of the government. 

The effect of this new legislation upon the criminal popu- 
lation must be looked for under contraventions or misde- 
meanors, and especially under transgressions of special laws. 
The statistics of such offences are precisely those that show 
the greatest and most persistent increase for all the great 
nations of Europe. This new industrial and social legisla- 
tion is, of couise, but one of many causes influencing the 
rapid growth of criminality in modern times, but it is 
probably the very strongest and most important of the forces 
in operation, although in Austria, France and Italy polit- 
ical legislation also has been influential. 

Thus Austria, since i860, "has renovated most profoundly 
her constitution and political form, has lost and acquired a 
province, and — through the midst of a struggle, ever more 
active, between the nationalities and races that compose her 
population : a struggle in which ethnic and historic causes 
are associated with those of an economic nature — has pro- 
gressed continuously." 1 One result is seen in the large in- 
crease of minor offences, administrative, fiscal and economic, 
which have been multiplied during twenty-five years (1871 

1 Bosco, p. 56. 



346 Fraud vs. Violence 

to 1895) m tne ratio of four to one. "The energy with 
which this nation has renovated, in large part, her ordinances, 
and enforced obedience to new legislation, is clearly mani- 
fested in these figures of the penal statistics:" 1 

Austria. — The Total Number of Persons Condemned for Contraventions; 

under the code and for other minor offences provided for by 

Special Laws. 

Contraventions ^^SJsS* Total of all these 
under the Code. y Laws offences. 

Proportion 
Annual average for 5-year periods. per 100,000 

population. 



I87I-75 234,783 38,753 273,536 1331.7 

1876-80 316,152 66,913 383,065 l I9 8i, 4 

1881-85 375»° 68 "9>405 494,473 > 

1886-90 383,196 165,790 548,986 1 22772 

1891-94 386,386 152,902 539,288 J 



Italy. " The principal traits of the movement of crime in 
Italy," writes Professor Bosco, " during the past 20 years, are 
these : The lessening amount of crimes of violence, especially 
of homicide ; the increase in those of fraud and against the 
authority of the state; and the small variation in those 
against property — robbery and theft." There are, as Professor 
Bosco tells us, two distinct trends of delinquency in modern 
Italy : one toward crimes of violence, and one toward_fraud- 
ulent and political crimes. " These are here associated to- 
gether, although they are properly distinctive of two diverse 
moments of historical evolution. In the other great nations 
of Europe delinquency presents itself therefore in another 
manner than in Italy, with a much greater development of 
the second than of the first type of crime. We are ap- 
proaching the condition of the other states." 2 The various 
regions of Italy differ very greatly in the degree and form of 
their civilization. In the northern states modern industrial 

1 Bosco, pp. 57-8. i Ibid., p. 16. 



The Tretid of Crime in Modem Times 347 

and commercial life is rapidly developing. Central Italy 
remains, as it has long been, essentially the home of art; 
while Sicily, Sardinia and Southern Italy are backward 
in civilization and somewhat resemble Spain, both in social 
conditions and in the character of their criminality. There- 
fore it is only natural that we should find in northern Italy 
crimes of fraud, and in southern Italy crimes of violence — 
such being the distinctive expression, in delinquency, of two 
different stages of social development. 

Italy. — The Total Number of Persons Condemned for Contraventions 

i'nder the code and for minor crimes provided for by 

Special Laws. 

Annual average Proportion per 

for 5-year periods. 100,000 population. 

18S1-85 146,449 5I4-58 

1886-90 212, 6;8 1 

I89I-95 233,904/ " dl 

1S96-97 239,808 

Turning from the study of these three nations, Germany, 
Austria and Italy, that have recently been developing so 
rapidly, politically, industrially, and intellectually, it is sad to 
contemplate the backward condition of civilization in poor 
old Spain, once the foremost nation of all Europe. 

Philip the Second forbade the education of girls, and ever 
since the women of Spain have continued to be exceedingly 
illiterate. In the entire population of both sexes, only 28^ 
per cent, know how to write. Religious faith is yet alive 
among them, but has degenerated into superstition and 
mere worship of externals. 1 Their entire social life seems 
organized within the narrow and worn-out customs of many 
centuries ago. With the exception of a single province, the 
development of industry is very slight. Although Spain 
possesses "some of the best iron fields in the world," she 

1 Bosco, p. 60. 



348 Nineteenth Century Spain 

" imports 30 per cent, of what is used in her foundries/* 
paying nearly ^700,000 a year for such material. The 
cultivated area of land is believed to have been much greater 
in former times than it is to-day. Ways of earning money 
are few, and the people are ground down by taxation. 
From 1832 to 1888 the average annual accumulation of 
wealth was probably not more than 27 shillings per inhabi- 
tant, while the taxation in 1887 equaled 35 shillings. 1 The 
nation has repudiated its debts many times, twice within the 
last sixty years, yet the excess of government expenditure 
over public revenues goes on increasing. Politics are thor- 
oughly corrupt and organized upon the spoils system. 
Civil war and the insurrections of her grievously oppressed 
colonies have gone far to ruin Spain. Everywhere through- 
out the peninsula may be seen the mournful effects of the 
economic depression, which, through varying years, becomes 
ever more acute and serious. 2 

What effect has all this suffering, want and ignorance 
upon the nation's criminality? Is crime very prevalent in 
Spain as compared with other states of Europe; and in 
what forms does it manifest itself? 

If we may believe the official statistics, the total of Span- 
ish criminality is not only relatively small, but it is also 
sensibly decreasing at the present time, especially in propor- 
tion to the population. Both delites and contraventions 
under the Code, after beginning to increase from 1883 to 
1890, a time of great improvement in Spanish affairs, in- 
dustrially and politically, have since diminished during the 
later years of deepening economic gloom and of national 
defeat and depression. 

1 See Mulhall. 3 See Bosco. 



The Trend of Crime in Modern Times 349 

Spain. — The Total Number of Persons Condemned for Delites and 
Contraventions Provided for by the Penal Code. 

Delites. Contraventions. Total Recorded Offences. 

Annual aver- Annual aver- Proportion Annual aver- Proportion 

age for 5-year age for 5-year per 100,000 age for 5-year per 100,000 

periods. periods. population. periods. population. 

1883-85 22,853 61,335 3 6 7- 2 7 84,188 504.1 

1886-90 23405 68,440 1 g 91,846 532.5 

1891-95 20,102 69,821/ 89,923 521.4 

1896 19,623 61,495 81,118 

Spanish statistics do not take the slightest notice of crimes 
proceeded against under special laws, those forms of social 
prohibition which have become in other nations of Europe 
such very important aids and safeguards of modern industrial 
and social progress ; but regard only the offences punished 
by the Code. Probably beyond its sphere of repression 
there are very few forms of conduct actually made criminal 
by social punishment ; for a close examination of the statis- 
tics reveals among the contraventions (minor crimes), acts 
which are regarded as much more serious offences (true and 
proper delites) among nations more highly advanced in 
civilization. Thus, cuts and blows, causing sickness and 
incapacity for work during seven days, are placed by the 
Spaniards among the minor criminal offences. This appar- 
ently reveals less social antipathy to such conduct and a 
lower, more antiquated standard of social morality. We 
are forcibly reminded of the conditions that prevailed in 
England a century or more ago, long before the advent of 
laws of social guardianship and modern industrial regulations, 
when even serious assaults upon the person were very 
lightly regarded. If some of our serious crimes are in Spain 
but misdemeanors (in the eyes of the law), then many of 
our minor offences are probably not crimes at all there. 1 

1 The Spanish criminal statistics should be theoretically among the best, for the 
methods of tabulation are excellent; but irregularities and gaps in the figures 
leave us in great doubt as to their reliability, so far as any accurate study of the 



350 Spanish Criminality 

As to the nature and the forms of crime in Spain, the fol- 
lowing passage from a book published in 1832 is almost as 
true now as then, and supplies an interesting commentary 
upon the relative amount and kind of criminality in the 
different nations of Europe, as seen by a French gentleman 
and eyewitness nearly seventy years ago. 1 

"The judicial statistics of Spain present a series of extra- 
ordinary phenomena. One finds assaults with violence, by 
open force, with murder or attempts at homicide, prodig- 
iously multiplied. One would say that these are annals of 
some barbarous age ; or those of modern peoples, such as 
the Albanians and Bosnians, who are deprived of the benefits 
of social order, of the light of instruction, and of the tutelary 
protection of laws. 

But, by a sort of compensation, one hardly finds a trace 
of crimes the most common in countries arrived at a high 
civilization. Nothing is more rare than the counterfeiting of 
money, theft by swindling, fraud, forgery of documents 
public or private, poisoning, incendiarism, fraudulent bank- 
ruptcy and the delits which presuppose artifice and trickery. 
Thus, precisely contrary to that which happens elsewhere, 
property is in Spain much less exposed to injury than the 
person ; and while in London, for example, one runs the 
risk every instant of being robbed in one way or another, in 
the Peninsula one runs no danger if he remains within the 
circuit of the towns, but if he goes beyond he must look out 
for everything." 

amount of delinquency in the Iberian Peninsula is concerned. They probably 
give us, however, an approximately correct idea of the increase or decrease of the 
nation's crime; for we must always remember that forms of conduct remaining 
socially unpunished are not criminal. In most recent years the nation's money, 
time and energy have been almost entirely devoted to political disturbances at 
home, and to disastrous foreign wars. There has been little strength left, prob- 
ably, for the enforcing of justice and the punishment of criminals. 
1 See Statistique de V Espagne, par Alex. Moreau de Jonnes, p. 298. 



The Trend of Crime in Modern Times 35 1 

" Among the causes that multiply crimes in Spain, it is 
necessary, without doubt, to count the absence of all popular 
instruction, which is able to facilitate, vary and increase the 
employments of the lower classes, to preserve them from 
idleness, to deliver them from the prejudices and propensities 
of barbarous times, and to enlighten them upon the danger 
of violating the laws. But, even while considering ignorance 
as a social calamity, we cannot accuse it, as some have done, 
of engendering all crimes, or even of being their principal, 
immediate and fruitful cause ; for the judicial records of 
Europe teach us that those countries where there are com- 
mitted each year the greatest number of delites, Southern 
Germany, Prussia, England and the Netherlands, are pre- 
cisely those where education is the most extended and the 
best perfected. Certainly, it is not because the people there 
are better educated than elsewhere that crimes are more 
numerous, and one must even think, that without the edu- 
cation which these men receive they would be yet more 
vicious. But, when one consults the facts, he must resign 
himself to the conclusion that public instruction, despite 
its beneficent effects, does not possess the power with which 
it has been credited, of preventing crimes against the social 
order, and of decreasing their number in proportion to the 
extent of its diffusion among the people." 

M. Jonnes rightly concludes, that to secure the disappear- 
ance of those crimes of violence which most trouble her, 
Spain needs, beside public instruction, "a code of judicial 
procedure and criminal laws which would reach the actual 
needs of the people of the peninsula ; a repression vigorous 
and constant, such as that which, during the occupation of 
Italy by the French, delivered that country from thefts, mur- 
ders and acts of brigandage which, perpetrated during more 
than a thousand years, seemed to have continued forever; a 
greater division of the soil, and the modification of the 



352 The Contraband Trade 

customs laws, which, by raising smuggling into a rich com- 
merce, a regular profession, puts a large portion of the popu- 
lation in continual hostility against society," so that the 
contraband trade " should be considered in Spain as the 
school of crime." z 

In 1830, out of a total population of 1 1,200,000, it was 
estimated that 300,000 people made their living by smug- 
gling; 2 and the census of 1877 recorded 1,630,000 men — 
285 out of every 1,000 adult males — as vagrants, smugglers, 
etc. The contraband trade was surely not criminal in Spain 
during the first half of the nineteenth century, for it re- 
mained practically unpunished, and was strongly supported 
by a large portion of society. It was undoubtedly a school 
for crime, or acts of violence against the laws, for brigandage, 
highway robbery and minor forms of wounding were very 
likely not yet truly criminal, whatever the laws might read. 
The ignorant masses of the population, holding to their 
ancient customs, and regarding strangers as their natural 
prey, aided or connived at the escape of the law-breakers, 
and society as a whole seemed powerless to repress such 
deeds. Yet at this time Spain was believed to be one of the 
most Christian of nations, and drunkenness was almost un- 
known among her people. 

Probably not more than 50,000 out of nearly 1,500,000 
children of school age in Spain, were receiving regular in- 
struction in 1830. "The census of 1803 indicated 29,900 
students, or but one for 346 inhabitants. This was thirty- 
four times less than the proportion in Switzerland, Germany, 
England and the Netherlands, and twenty times less than in 
France in 1830." "The ignorance to which the lower 
classes in Spain are condemned," writes M. Jonnes, "makes 
them seem, to the nations of Northern Europe, like brutish 
people and savages." Notwithstanding the " admirable 

1 Jonn£s, pp. 298-301. * Mulhall, p. 542. 



The Trend of Crime in Modern Times 353 

temperance" of the Spaniards, and the strength of the 
"religious sentiment" among them, "one sees in our day a 
nation degenerate and declining, despite all the gifts with 
which Providence has endowed it." 1 

Although acts of violence were widely prevalent in Spain 
in 1830, the total amount of criminality must have been 
very small. The manifold forms of modern industrial delin- 
quency were practically unknown, for the business develop- 
ment — the industrial civilization — which induces such acts, 
and makes necessary their punishment as crimes, did not 
exist in Spain then, and is scarcely found there even now. 
The social standard of right action was so low, owing to the 
dense ignorance of the people, and the state of brutish 
oppression in which they lived, that many ancient and 
honorable forms of rapine and bodily injury had not yet 
been made criminal by social punishment, because of the 
inert, or active, opposition of the masses, and the undevel- 
oped and disunited condition of the social existence. 

How comes it that Spain, this proud and virile nation, 
once the leader of the world's civilization, 2 whose land was 
the home of strength, culture and enlightenment — how comes 
it that she fell so low? 

Surely one of the chief reasons is that for centuries she 
has persisted in choosing her crimes wrongly. Not only has 
the Spanish race failed to make criminal those violent and 
bloody actions which should have been the true and proper 
crimes of its stage of civilization, but it has ruthlessly and 
indefatigably crushed out almost every tendency to helpful 
variation — killing, torturing, or banishing every citizen who 
was suspected of thinking for himself in matters of religion, 
thus eliminating most of the progressive men of Spain, 
who could and would have led her to higher levels of social 
development, prosperity and enlightenment, if the nation 

1 Jonnes, pp. 303 and 305. 'In the sixteenth century. 



354 The Inquisition in Spain 

had been willing to follow them rather than the leaders of 
the Inquisition. 

As in Anglo-Saxon England, so also in Spain, the crea- 
tion of a united nation, from many warring states, was 
accomplished mainly through the growing strength of two 
great socializing forces — the king and the Christian Church 
— working harmoniously together for the establishment of a 
centralized government; extending and securing their 
mutual authority, first by successful wars, and second by 
criminal prosecutions for acts deemed most dangerous to 
their power and continued prosperity. But in England, 
when either king or Church became dangerously tyrannical, 
the other great forces of the nation united to curb and limit 
the growing despotism — thus maintaining and enlarging 
individual rights and liberties, which would else have been 
crushed out, under the iron heel of a criminal law, framed, 
not to foster and defend continued social progress, but to 
enforce absolutism and to prohibit growth in any but this one 
direction. In Spain despotism was victorious. While the 
English people rose to power and greatness, throwing off 
the shackles of a feudalized ecclesiasticism and of the divine 
right of kings, the Spanish people sank into ignorance, 
superstition, and blind obedience to the constituted au- 
thority. 

Nowhere else in the entire Christian world has " the 
whole purpose and strength of Church and State been so 
centralized as there, in the repression of what was regarded 
as a common evil threatening the life of both." T The yoke 
of this despotism was fixed triumphantly upon the nation's 
neck, and has remained there through long centuries, even 
until recent years, permitting progress only within very 
narrow limits. The strong Romanism of the Spanish people 
permitted and supported the Inquisition — that most power- 

1 Johnson's Universal Cyclopcedia (1898), "The Inquisition," p. 598. 



The Trend of Crime in Modern Times 355 

ful engine of a so-called " Christian " absolutism — conse- 
quently the tortures inflicted by the " Holy Office" were 
true criminal punishments, and the victims of the Inquisition 
the criminals of Spain. Lorente gives the figures for this 
one nation, down to 1809: burnt alive, 31,912; burnt in 
effigy, 17,659; imprisoned, tortured, etc., as penitents, 
291,450; a total of 341,021. The Jews were expelled from 
the country in 1492, and much of the learning and ability of 
Spain went with them, although their wealth was largely 
confiscated. How many protestant " heretics " were driven 
out we do not know, but the number must have been very 
great. France and Italy also punished as heretics many 
thousands of their best citizens. The true value of the men 
and women thus made criminals may be estimated from the 
stimulating and educating influence of their presence among 
the nations — England, the Netherlands and America — 
whither some of them escaped ; and from the large number 
of distinguished citizens who trace their ancestry to Huguenot 
refugees. 

Until the French invasion in 1808, Spain was an " abso- 
lutist and ecclesiastical monarchy. The old assemblies of 
the estates (the Cortes) were no longer convoked. The 
descendants of the aristocracy, the Spanish grandees, had 
been thrust aside. The king had centralized all political 
authority in his own person, but he had ceased to exercise it 
himself; he left it to his court. It was the sovereign's 
immediate circle — his wife, his confessor, his favorite, or his 
wife's favorite — that governed Spain in the king's name. 
This little group was called the camarilla, or little chamber." 1 

The Church alone retained its ancient strength. " It re- 
tained its immense domains almost without taxes, its right to 
acquire property by mortmain, its convents and its ecclesias- 
tical courts. It kept up the Court of the Inquisition, and its 

1 Seignobos, p. 286. 



356 End of Ecclesiastical Despotism 

control of family relations, which gave it authority over the 
private life of all laymen. Its censorship of all publications 
made it supreme over the nation's intellectual life. There 
were thus in Spain but two real powers, the camarilla and 
the clergy. The Spanish submitted to this two-fold des- 
potism without the thought of saving themselves from it, at 
least without the power to do so." r However, the Inquisi- 
tion had gradually been losing its hold — its will was murder- 
ous, but its teeth were dropping out. In the eighteenth cen- 
tury torture was abandoned, and the death penalty was in- 
flicted but two or three times a year. 2 As late as 1826 a 
Jew was burnt and a Quaker schoolmaster hanged in Spain 
by officials of the Inquisition. In 185 1, the government of 
Isabella again " gave the clergy the control of education and 
a censorship of books, and put itself at the service of the 
ecclesiastical authority." So also from 1863 to 1868 Cath- 
olic absolutism and the camarilla were revived, and priests 
became once more the most influential men in the govern- 
ment. Not until 1869 did the Spanish nation dare "to 
inscribe religious liberty in a constitution," 3 and then all her 
bishops, with one exception, refused to swear obedience. 
Religious toleration is now admitted in theory, but even 
to-day " public exhibitions or ceremonies of any other than 
the national religion are forbidden," and the placing- of a 
Protestant notice or emblem on the outside wall of any 
building is criminal under the law. 

Was not the yoke of monarchical and ecclesiastical abso- 
lutism fastened firmly upon the Spanish people, and has not 
the effect of its criminal prosecutions been the crushing out 
of that independence of thought and action, and even of the 
desire to think and study for oneself, to which the great 

1 Seignobos, p. 287. 2 Ency. Brit. (1881), "The Inquisition," p. 94. 

8 Seignobos, pp. 299 and 311. * Ibid., p. 316. 



The Trejid of Crime in Modern Times 357 

political, scientific, industrial and educational development of 
this modern age is due? 

Spain has chosen her crimes wrongly, and therefore the 
grand and inexorable law that guides the progress of the 
world to better things has punished her. She has fallen into 
the decadence prepared by her own mistakes, while the 
leadership of the world's civilization has passed to other 
nations, among whom true liberty can grow and thrive, 
unless they also fall into the like error of punishing the 
social good and fostering the social evil. 

There is more hope for Spain to-day than for centuries 
past. She has been compelled, like every other nation of 
Europe, to free herself from the crushing weight of monas- 
ticism. Universal suffrage has been established; a consti- 
tutional and representative government introduced. Spain is 
free at last from the heavy burden of colonies which she 
knew not how to govern wisely, which were almost always 
in revolt against her power, and a constant drain upon her 
resources and vital energy. Also, she has probably suc- 
ceeded now in making criminal most of those ancient forms 
of violence, which in the first half of the nineteenth century 
remained very largely unpunished. 

How widely different from the sad conditions we have 
just been studying are those prevalent in modern England; 
where the entire nineteenth century has been filled with a 
marvelous activity and development, industrial, social and 
political, material, mental and moral — England, where the 
great increase of population has been outstripped by the 
yet greater increase of wealth; 1 where education is now 
compulsory; where the wide extension of the franchise, the 
organization of labor, the coming of steam, compressed air 
and electricity, shorter hours of work, a larger money 
recompense for toil, with the diffusion of the comforts and 

1 Giffen, p. no. 



358 Records of England 's Progress 

even luxuries of life, have all united to stimulate intelligence, 
promote national solidarity, and spread abroad among the 
people that strong feeling of brotherhood, which has induced 
the great practical humanitarian and truly Christian move- 
ments of the age. England, first of all the great European 
civilizations, recognized the rights of animals to kindness 
and the law's protection ; and very many forms of wise edu- 
cational, prohibitive or protective legislation for men, women 
and children have had their origin and widest enforcement 
here. 1 This nation, during twenty recent years, 1870 to 
1890, has had the largest total amount of crime, in propor- 
tion to population, of any of the great nations for which we 
have reliable official statistics ; and were it possible to compare 
such tables for a longer period in the past, there seems very 
little doubt but that the preponderance of English crime 
would be yet more pronounced and greater. (See page 300.) 

The number of persons held for trial for all criminal 
offences before the courts and tribunals of England and 
Wales has nearly doubled within forty years, rising from 
389,502 in 1857 to 720,441 in 1896. In proportion to pop- 
ulation the growth has been from 2003.34 (the average 
from 1857 to 1861) to 2344.34 in 1896. 

But this increase is not under all forms of crime, far from 
it. Old and most serious kinds of criminality show a greater 
and more continuous diminution in England than in any other 
great nation. The figures since 1856 read as follows: 2 

1 Factory and mining legislation, for example. Spain has no laws for the pro- 
tection of animals even now. 

a See Judicial Statistics of England and Wales, 1898, vol. civ, page 40. 

The remarkable decrease under most of these serious old forms of crime be- 
comes more manifest if we compare the separate offences, or classes of offences 
(in proportion to 100,000 population), for two periods, 1836 and 1896 — sixty 
years apart. 

Murder has diminished from .49 to .19; manslaughter from 1.35 to .54; mali- 
cious wounding from 3.19 to 2.48, and assault from 4.69 to .66. Attempts to 
murder and felonious wounding show an increase from .81 to 1.05; but from 1834 



The Trend of Crime in Modern Times 359 

Numbers for Trial for All Serious Offences in England and Wales — 
Assizes and Quarter Sessions (1857 to 1896 inclusive). 

Annual average for Proportion per 

5-year periods. 100,000 of population. 

1857-61 17,825 90.53 

1862-66 19,758 94- 61 

1S67-71 18,445 83.00 

1872-76 15,096 63.63 

1877-81 15,567 61.36 

1SS2-S6 14,303 53.13 

18S7-91 12,481 43.87 

1S92-96 11,816 39.31 

1896 11,103 36.13 

Many old misdemeanors are decreasing also, and the enor- 
mous multiplication of criminals in modern England must 
be credited to the enforcement of the ever larger number of 
new social prohibitions with which the statute-books are rife. 
It is not necessary to take this upon the word of any man. 
Here are the judicial statistics — they shall speak for them- 
selves : 

to 1838 the average number under this head was .94 per 100,000 of population, 
The total number of persons tried for murder, wounding and assault, etc., has de- 
creased, despite the rapid growth of population, from 1572 (1836) to 1512 (1896); 
or, in proportion to population, from 10.53 to 4.92. 

Unnatural offences have decidedly decreased, while, on the other hand, rape, 
defilement and indecent assaults, etc., have multiplied greatly, from 1.25 to 2.94 
per ioo.oco. 

Serious offences against property, with violence — burglary, robbery, etc. — show 
a great diminution in proportion to population, from 8.74 (1836), 9.44 (1834-8), 
to 6.16 in 1896. 

On the contrary, indictable offences against property without violence show a 
decided increase, from 108.33 to 146.08; but this is largely accounted for by the 
multiplication of criminals under embezzlement, fraud and offences in bankruptcy, 
larceny of post letters and other relatively modern forms of theft. 

For malicious injuries to property the figures are 1.07 and .93. Forgery and 
offences against the currency show a notable decrease, from 2.41 to 1.07. Against 
treason and piracy laws there were no offenders during both periods, while under 
the head of riot the decrease is truly enormous — from 3.56 to .07. 

The grand total of all indictable offences — which includes all serious crimes 
and many petty offences — has increased in proportion to population from 140.56 
(1836), 148.54 (1834-38), to 164.91 in 1896; but this is entirely due to offences 
under the larceny group. Old serious crimes have decreased greatly. 



360 



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The Trend of Crime in Modern Times 361 

These are ancient forms of criminality which have not been 
much enlarged by statutes in recent years ; although the 
new crime of embezzlement is here included, after 1872, with 
the old indictable offences of simple larceny. However, the 
figures for this one crime are comparatively small, ranging 
from 731 for the period 1873-76 to 1,035 m 1892-96. 

The great wave of social pressure against minor offenders 
which began in England about 1855-57, w i tn tne enlarged 
jurisdiction of the summary courts and the establishment of 
a disciplined police force throughout all the country, is very 
noticeable in the increased numbers of these statistics for 
several five-year periods after 1857-61. It is very probable 
that common assaults, and some other forms of delinquency 
here recorded, were not made really criminal, by determined 
punishment until that time. We know that prosecutions 
for simple larceny mounted then (1855-57), with a great 
jump, and it is probable that a similar increase took place 
under malicious damage and game-law offences, but we can 
hardly believe that the amount of social punishment in pre- 
vious years had not sufficed to make such conduct criminal. 
The greater pressure simply made social disapprobation 
more distinctly recognized and felt. (See the argument in 
Appendix II.) Drunkenness, as we have seen, did not really 
begin to be made a crime until after 1833, although laws ex- 
isted penalizing the offence. 1 Vagrancy, in some of its forms, 
is a very old crime, and the laws were somewhat strongly 
enforced against it, early in the nineteenth century. But 
recent statutes have largely changed the character of such 
delinquency, and the growing social pressure against gaming 
has made such conduct criminal and greatly increased the 
number of prosecutions under the vagrancy acts. The Edu- 
cation Act of 1 87 1 introduced an entirely new form of crime 

1 See Page 272, Note I. 



362 Drunkenness and Growth of Crime 

into England, and large have been the additions to the 
nation's criminals because of it. Accordingly, the statistics 
for drunkenness, vagrancy and offences against the Educa- 
tion Acts tell a different story from that disclosed by the 
old and relatively unchanged forms of misdemeanor we have 
been considering — a story of greatly increasing crime. (See 
tables on succeeding pages.) 



The Trend of dime in Modern Times 363 





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The Trend of Crime in Modern Times 365 

Many of these offences could not possibly have been 
made criminal till within the last sixty-five years. All stand 
for conduct which we should expect to have punished with 
increasing energy by a great modern industrial civilization, 
advancing rapidly in knowledge, intelligence and social 
morality. 

Meanwhile the total number of persons tried by English 
courts for all misdemeanors has steadily and rapidly in- 
creased, each five-year period showing a decided, and in 
every instance but two a large increase over the five-year 
period before it. The change, in actual figures, has been 
from 363,417 in 1857, to 709,338 in 1896; and in proportion 
to population from 191 2. 81 (the average for 1857-61) to 
2308.21 in 1896. 

England and Wales. — Total Number of Persons tried by Courts of 
Summary Jurisdiction. 

Annual average Proportion per ioo,- 
for 5-year period. coo population. 

1857-61 376,569 I9I2.8I 

1862-66 426,779 2043.58 

1867-71 490,872 2208.82 

1872-76 592,893 2499.04 

1877-81 632,626 2493.45 

1882-86 669,633 2487.29 

1887-91 671,900 2361.83 

1892-96 678,314 2256.48 

1896- 7 9,338 2308.21 

"But," some one may say, "the English judicial statistics 
are not comparable throughout their entire length. You have 
confessedly no full and continuous record of misdemeanors 
until 1857. How do you know that the mass of minor 
criminality before that date was less in proportion to the 
population than it has been since? How then can you be 
sure that crime has been increasing during this century of 
rapid progress? Such questions are but right and must be 



366 Comparison of Crimes — 1836 and 1896 

answered, if you expect to establish more than a mere possi- 
bility." 

With the close of Queen Victoria's sixtieth year of reign, 
the English statisticians made the most careful examination 
and comparison possible of the state of crime in England 
and Wales in 1836 and 1896. Doubtless they sought the 
truth fearlessly. But, if personal inclination could in any 
way have influenced their conclusions, the trend would 
probably have been toward the showing of a larger amount 
of crime in the earlier as compared with the later period, 
a time of great national exaltation and rejoicing. What 
do they tell us? 

Summary Proceedings in 1836 and 1896. 
"The most marked features of the figures for 1896 are, 
first, the large number of indictable offences dealt with sum- 
marily, and second, the large number of newly created 
criminal offences. In 1836 there were no cases at all cor- 
responding to the 39,576 indictable cases disposed of at 
petty sessions in 1896, or to the 67,858 cases under the 
Elementary Education Acts, or to the 1,715 cases under the 
Vaccination Acts. Under other heads, such as Sanitary 
Laws, Adulteration, Intoxicating Liquor Laws, Military and 
Naval Law, Stage and Hackney Carriages, and Factory 
Acts, the law has been so much extended as to be prac- 
tically new. Unfortunately no figures exist as to the total 
amount of work done by justices out of sessions in 1836, and 
it is not possible to frame a comparative table on the sub- 
ject. A return was asked for by Parliament of the number 
of persons committed to prison on summary conviction during 
the year ending at Michaelmas 1835, Dut as m man y places 
no proper records were kept at that time, cases being some- 
times disposed of by magistrates at their own houses, the 
reports made by clerks to the justices are very incomplete. J 

l See Parl'y Papers, H. C. (580), 1837. 



The Tre?id of Crime in Modern Times 



• 6 7 



The digest of gaol returns for 1836, however, professes to 
give the number of persons received in prison on summary 
convictions under different heads. 1 As the figures in these 
two returns, though incomplete, are of considerable interest, 
they are given below with the figures for 1896 that most 
nearly correspond to them." Notice the great increase 
under " Police Acts " and " Other Offences," which include 
most of the new forms of crime. 



Vagrancy Act, Offences 
Against 

Assaults 

Game Laws, Offences 
Against 

Malicious Trespass Act, 
Offences Against. 
[Malicious Darn- 
ages] 

Larceny Act, Stealing 
Animals, Fruit, etc 

Revenue Laws 

Metropolitan and 
other Local Police 
Acts 

Servants and Appren- 
tices, Offences by . . 

Other Offences 

Offences not Stated. . . 



Total. 



IS36. 


1896. 


Persons Com- 
mitted to Prison 
on Summary 
Conviction. 


Persons Receiv- 
ed in Prison on 
Summary Con- 
viction. 


Persons Con- 
victed and Sen- 
tenced to Im- 
prisonment. 


Persons Con- 
victed and Fined 
or otherwise Dis- 
posed of. 


2,106 
757 


18,863 
8,991 


20,483 
IO,Ol6 


21,677 
32,237 


779 


3,229 


302 


7,304 


339 


2,837 


1,058 


11,017 


218 
5° 


2,668 
49 


236 

40 


2,642 
8,877 


27 


726 


i,379 


75,576 


218 








186 
26,962 


13,015 


31,838 


331,970 








31.672 


5 ,378 


65,352 


491,300 



"It is to be noted that of 491,300 persons convicted in 
1896, but not sentenced in the first instance to imprison- 



1 See Parl'y Papers (c. 89), 1837, P- 439- 



368 Crime Outstripping Population 

ment, a considerable proportion, probably over 70,000, went 
to prison ultimately in default of paying their fines." 

"It is probable that the 50,378 given as the number of 
persons received in prison on summary conviction during 
1836, includes all persons committed by justices out of the 
sessions, whether they were technically convicted or no ; the 
corresponding figure to which for 1896 would be 145,428. 
A comparison between the two figures illustrates the im- 
mense increase of the work done by courts of summary 
jurisdiction. While the number of offenders committed to 
prison (for serious crimes) on conviction on indictment has 
decreased about 54 per cent., that is to say, from 16,418 to 
7,582, the number of those committed by summary process 
(minor offenders) has increased 188 percent. The increase 
in the number of criminal offenders dealt with summarily 
otherwise than by imprisonment (by fines, etc.) has probably 
been at least as great." 1 

Meanwhile the population of England and Wales has en- 
larged, during this period of sixty years, by 105.9 per cent. 
Therefore, minor crime has multiplied much more rapidly 
than population — in the ratio of 188 to 105.9 — according to 
the very conservative estimates of the English statisticians. 

The author himself believes that the increase of crime in 
England since 1836 has been far greater than 188 per cent., 
on account of the strong modern tendency to substitute fines 
for imprisonment in the punishing of minor offenders. 

A comparison of the penalties inflicted by courts of sum- 
mary jurisdiction, in 1857 and 1896, reveals the strength of 
this tendency. In 1857, the total number of persons pro- 
ceeded against summarily was 363,417 as against 709,338 in 
1896. Of these, the justices convicted 233,759 in the earlier 
and 556,652 in the later year. Imprisonment was decreed 
for 63,061 persons in 1857, and 65,352 in 1896. But the 

1 See Judicial Statistics of England and Wales, 1898, vol. civ, pp. 29, 30. 



The Trend of Crime in Modern Times 369 

number of those fined mounted from 143,463 in 1857, to 
475,900 in 1S96; and the total of those convicted and " dis- 
posed of otherwise than by imprisonment" rose from 170,- 
698 in 1857, to 491,300 in 1896. Thus, while the figures 
for the imprisonment of minor offenders have remained 
practically the same, fines have been multiplied in number 
almost three and one-third times. 1 

The nature of the sentences imposed for indictable offences 
in 1836, when contrasted with those of 1896, point strongly 
to this same great preference for fines in the punishment 
of modern minor offenders. 2 Accordingly, if 188 per cent. 

1 Judicial Statistics (1857-58), pages ix and 16, and (1898) pp. 30, 36 and 77. 

1 The record of sentences imposed for all indictable offences (which include all 
serious crime and much minor delinquency) in 1836 and 1896, show that the 
amount of punishment by fines for indictable offences has very largely increased 
since 1836, while short terms of imprisonment (two years and under) have de- 
cidedly decreased; and this, although we are accustomed to consider brief im- 
prisonment as a most characteristic feature of the modern English penal system. 

In 1836 serious crimes were punished customarily with death, or transportation 
for life, fourteen or seven years. Out of a total of 14,771 persons convicted for 
all indictable offences that year, 3,611 were thus sentenced, while in 1896 only 
400 of the most heinous criminals were punished by death, or penal servitude for 
over three years. The penalties for even grave offences have undoubtedly become 
relatively short terms of imprisonment in our time; and yet, in 1836, the amount 
of imprisonment (two years and under for all indictable offences) was 68,546 in 
proportion to 100,000 sentences, while in 1896 it was only 53,847. Meanwhile 
fine, whipping (for boys) and recognizances, which in 1836 were 2,051, 224 and 
1,347 respectively (per 100,000 sentences), have risen to 20,253, 7,280 and 
14,367 in 1896. [See Judicial Statistics of England and Wales, 1898, vol. civ, 
pages 22-3 and 42.] Therefore, the less heinous indictable crimes were pun- 
ished in 1836 mainly by imprisonment under two years, and in 1896 largely by 
fine, whipping and recognizances. 

This same strong tendency has extended, as we have already seen, to the pun- 
ishment of offences tried summarily (1857 to 1896), and therefore the statement 
of the English official statisticians, that " the increase in the number of criminal 
offenders dealt with summarily, otherwise than by imprisonment, has probably 
been at least as great" — namely, 188 per cent. — as the number of those com- 
mitted to prison, should be regarded as too conservative an estimate. The per- 
centage of increase for minor crime in England and Wales from 1836 to 1896 is 
probably decidedly greater, and the increase of all crime at least as great. 



370 Population and Crime by Counties 

correctly represents the increase of minor criminals " com- 
mitted by summary process," (see report of English sta- 
tisticians) then it is surely probable that the increase of 
"offenders dealt with summarily" by fines or "otherwise 
than by imprisonment" is far greater. 

Naturally some regions of England are developing much 
more rapidly than others in wealth, prosperity and civiliza- 
tion. In this age when change of domicile is so very easy, 
and men and women of the energetic, marrying and child- 
rearing period of life are moving continually from place to 
place, in search of remunerative employment, it follows 
almost inevitably that the most prosperous and progressive 
regions in any country, the homes of modern industrial and 
democratic civilization, should be, in general, those where 
the population is rapidly increasing. A comparison between 
the growth of population and the growth of crime in the 
different counties of England and Wales will, therefore, be 
both interesting and important. Such a study has recently 
been made by English statisticians, and the results of their 
labors are given here, largely in their own words. 

In the construction of the necessary tables, the estimated 
population of each county in 1836 and in 1896, together 
with the percentage of increase or decrease during the 
period, are contrasted with the number of prosecutions per 
100,000 of population, for crimes against the person and 
against property, including forgery and coining. 1 But "the 
figures for individual counties are so small and so liable to 
be affected by purely local and accidental causes, that they 
cannot be safely used as a basis of comparison." Therefore, 
" the counties are grouped according to the rate of increase 
of their population since 1836." In general, for all England, 
the result shows greater delinquency in 1896 than for the 

1 Indictable offences, not including the miscellaneous crimes grouped in Class 
VI of the English statistics. 



The Ti-end of Crime in Modem Times 3 7 1 

twelve-month sixty years before, even for indictable 
offences, which are here alone considered. 

"The first group contains three counties (Huntingdon, 
Cornwall and Rutland) whose population has decreased 
since 1836. The decrease of crime in this group, as a 
whole, is markedly greater than the decrease of population; 
from 75.9 per 100,000 (average 1834-38) to 69.5 in 1896, 
while the number of inhabitants has grown less by 1.5 per 
cent." 

In the second group also, consisting of thirteen counties, 
in which the population ■ has increased on the average only 

18.4 per cent., the decrease in crime has been noticeable; 
the number of crimes per 100,000 being 137.4 in 1834-38 
and only 126.2 in 1896. 

Next we have a group of nine counties in which the popu- 
lation has increased at rates varying from 57.7 per cent, to 

99.5 per cent., a growth less than the average for all Eng- 
land, which is 107 per cent. 2 In these, crime, as tested by 
the number of criminal prosecutions, shows a slight increase, 
from 141.4 (1834-38) to 143. 1 (1896). 

In the next twelve counties the increase of population has 
been large, varying from 102.9 per cent, in Sussex to 179. 1 
per cent, in Lancaster. 3 But crime has risen yet more rap- 
idly, namely, from 141. 6 to 173.6 per 100,000 persons. 

"Lastly, we have the county of Durham, where the popu- 

1 Hereford, increase, i.o per cent.; Salop, 4.9 per cent.; Somerset, 5.7 per 
cent.: Wilts, 7.6 per cent.; Dorset, 16.5 per cent.; Norfolk, 17.7 per cent.; 
Cambridge, 20.1 per cent.; Westmorland, 20.1 per cent.; Suffolk, 20.4 per 
cent.; Oxford, 21.3 per cent.; Devon, 25.7 per cent.; Bucks, 25.8 per cent.; 
Lincoln, 39.6 per cent. — total, 18.4 per cent. 

2 Counties with increase of population 50 per cent, and less than 100 per 
cent. : Cumberland, Herts, Berks, Gloucester, Northampton, Bedford, Worcester, 
Leicester, Nottingham. 

'Counties with increase of 100 per cent, and less than 180 per cent.: Sussex, 
Chester. Northumberland, Derby, Southampton, York, Warwick, Monmouth, 
Stafford, Metropolitan counties, Essex and Lancaster. 



37 '2 Increase of Crime in Wales 

lation has increased by more than 303 per cent., and crimes 
have increased from 61.6 to 188.4 P er 100,000." 

In Glamorganshire, the only Welsh county showing a 
great enlargement of the population (439.0 per cent.), the 
proportion of crime has multiplied from 62.9 to 270.7. But 
throughout all Wales, except Pembrokeshire, crime has 
"largely increased" in proportion to the population; and 
this whether the number of inhabitants (per county) has 
decreased or increased. 1 "But," so states the report, "the 
very low proportion of crime recorded in Wales in 1836 
is suspicious, and the actual figures are so small for all 
counties, except Glamorganshire, that it would be unwise 
to attach much importance to them." 

" If we take the English counties alone, the figures at first 
suggest the conclusion that an increase of population leads 
to a disproportionate increase of crime, or in other words, 
that the number of crimes for every 100,000 of the popula- 
tion increases, speaking generally, with every increase of 
population. On closer consideration, however, such a con- 
clusion seems open to much doubt." ... In the Metropol- 
itan Counties, in Essex, in Warwickshire and Cheshire, 
where the growth of population has been greater than the 
average for England as a whole, the proportion of crime has 
diminished. On the other hand, " in Cumberland, Notts and 
Westmorland, the increase in population has been below the 
average for all England, but the increase in the number of 
prosecutions has been far above the average." 

4< On the whole, it seems probable that where the increase 
of population is merely the increase of a pre-existing class 

1 Five Welsh counties show a decrease averaging 11.3 per cent.: Montgomery, 
Raynor, Cardigan, Brecon and Anglesey. Five show an increase averaging 23.9 
per cent. : Pembroke, Flint, Merioneth, Carmarthen and Denbigh. Carnarvon 
shows a gain of 58.4 per cent, in population, and crime has increased from 37.6 to 
91.4 per 100,000 people. 



The Trend of Crime in Modern Times t>7Z 

of the population, such as mining, industrial or shipping 
population, it has not been accompanied by a dispropor- 
tionate increase of crime ; but that where the increase of 
population has been due to a change in the character of their 
employment, a disproportionate increase of crime is likely to 
ensue." ' 

In other words, it is the beginnings of new life, the forma- 
tive and transition period, the time of rapid early develop- 
ment and progress to a probably more complex industrial 
civilization, that occasions the multiplication of criminals.* 

What conclusions, then, if any, are warranted by the evi- 
dence just given? The relation of the growth of crime to 
the increase of population is strikingly illustrated by the 
groups of English counties ; but mere growth in the number 
of inhabitants is surely not the dominant cause multiplying 
criminals. In Wales, crime has increased out of all propor- 
tion to the slight increase of the population. This is true in 
many of the English counties also. 

The criminal records used by the English statisticians in 
these comparisons include only indictable offences, 3 which 
show "an increase in the proportion of prosecutions to 
population" for all England, of but "about 10 per cent. 
since 1834-38." According to their own very conservative 
estimates, the growth of non-indictable crimes, tried by 
courts of summary jurisdiction, has been very much greater 
during this same period of sixty years: "the increase in the 
number of criminal offenders committed to prison, or other- 
wise dealt with by summary process," having "probably 
been at least 188 per cent," for England and Wales, while 
population has been increasing 105.9 per cent. 4 

1 See Judicial Statistics of England and Wales (1898), vol. civ, p. 28-9. 

s See chapter xiii, pp. 315-20. 5 Omitting miscellaneous crimes in Class VI. 

* See Judicial Statistics of England and Wales (1898), vol. civ, page 30. This 
included, however, indictable offences tried summarily in 1896 — 39,576 out of a 
total of 709,338 crimes. 



374 Uneven Distribution of Delinquency 

Now it is precisely these new forms of minor crime, within 
the jurisdiction of the summary courts, which have caused 
the great multiplication of England's criminals since 1836; 
and this increase of minor offenders is especially true of the 
industrial and city districts where the population is most 
dense and most rapidly increasing. Accepting the growth 
of England's minor criminality as "at least 188 per cent.," 
this average increase exceeds the growth of population in 
every separate county of England and Wales save two : 
Durham and Glamorgan. Meanwhile the amount of most 
serious crime has decreased about 54 per cent. : the actual 
figures being 16,418 and 7,582;* but these numbers are so 
small relatively that they could not greatly change the rela- 
tive proportions of England's total delinquency in the two 
periods. 

We may conclude therefore that the growth of crime in 
all England has outstripped the rapid growth of the popula- 
tion, but that this increase of crime is very unevenly distri- 
buted, the most prosperous and progressive industrial and 
city regions getting the most of it — especially those in which 
the character of employment has changed — while the rela- 
tively unprogressive counties, where population is declining 
or not enlarging greatly, show a much smaller increase of 
delinquency, or even in some instances a probable decrease. 

Summary. The typical crimes of the most highly devel- 
oped and successful nations of to-day are largely misdemean- 
ors, caused by the fine legal adjustments made necessary by 
our ever more and more complex social life. Will this pro- 
cess continue forever ? Will more delicate adjustments always 
be necessary and result in an ever-enlarging list of social 
prohibitions? Probably. But the rate of increase may not 
be as rapid in the twentieth century as it has been in the 

1 Offenders committed to prison on conviction on indictment in 1836 and 1896. 
Judicial Statistics, 1898, page 30. 



The Trend of Crime in Modern Times 375 

eighteenth and nineteenth. There was so much to be accom- 
plished, and so much has now been done, to guard the rights 
and foster the upward growth of each and all under the laws, 
that we may well hope our suffering and arduous labors will 
make the creation of new forms of crime less necessary for 
our great-grand-children ; that this education through social 
discipline may gradually become less difficult, its lessons 
more easily and quickly learned. If this prove true, and if 
society continues to be successful in diminishing the amount 
of criminality under old laws, then the age of maximum 
crime will have been passed, and from thenceforth society 
will have a decreasing, rather than an increasing total of 
delinquency. 

Indeed, there is some evidence that the flood of crime has 
even now reached its height in England, for the increasing 
totals of misdemeanors have since 1882-86 failed to keep 
pace with the yet larger growth of population ; so that per 
100,000 inhabitants England and Wales show a sensible de- 
crease in crime, comparing 1882-86 with later five-year 
periods. The statistics of Austria and Italy, Germany, 
Scotland and Massachusetts, have no encouragement to give 
to this pleasing idea, but the French records may be thought 
to favor it. On the whole, it must be confessed that the 
happier time is certainly not yet fully come, and this book 
deals with the present and the past, not the future ; with 
historical and statistical facts, not with prophesies of a com- 
ing era. 1 

1 In England and France the present time may, possibly, be one of rest be- 
tween two periods of increasing crime — a pause, such as came to the former 
country in the late 18th and early 19th centuries. 



CHAPTER X V 

AN ETHICAL THEORY OF CRIME. 

Out of the teachings of natural law, which, whether we 
like it or not, whether we aid or oppose it, is driving the 
world forward to higher and higher planes of life, of intel- 
ligence and mutual helpfulness, comes the idea of crime, 
and the necessity for the appearance of the criminal in every 
human community. Crime is an inevitable social evil, the 
dark side of the shield of human progress. The sifting pro- 
cesses of natural selection continue within the domain of 
social life, rejecting, through social pressure, both weaklings 
and workers of iniquity. Anti-social individuals, or male- 
factors, result from the persistent tendency to variation, 
manifest in all life. They become criminals through pro- 
cesses of social selection, during which individuals refusing 
to live up to the social standard of right action are punished 
by the community, and their actions become known as 
crimes. Anti-social acts occurred probably long before the 
punishment of such conduct by the social group; 1 certainly 
ages before there was any recognition of acts as wrongs 
against society. Originally the forms of anti-social conduct 
were very few in number ; they have become many with the 
progress of civilization. The great majority of acts now pun- 
ished, and rightly punished, as crimes by modern nations, 
either are, unknown among low savages, or are not considered 
as wrong and immoral. Very often such acts are not really 
evils in a low stage of social development. Certainly they 
are not punished by the social group as wrongs against itself; 

1 See page 31. 
(376) 



An Ethical Theory of Crime $11 

they have not yet become crimes. To this extent, therefore, 
crime is a social product; — not that anti-social conduct is a 
product of social forces, but that society has been compelled 
to enlarge continually its categories of anti-social acts, to 
broaden out persistently the field within which certain acts 
are prohibited as injurious to the social welfare, and to pun- 
ish as criminals the increasing number of the disobedient, 
who refuse to submit themselves to this ever-extending social 
pressure. The increase of crime, which is due to wise 
changes in the criminal law or its administration (induced by 
a rising social standard of right action), without any increase 
of anti-social conduct, promotes civilization and tends to 
social betterment; but, statutes and administration remaining 
the same, an increase of crime must mean an increase of 
anti-social conduct, which assuredly does not promote civili- 
zation. 

Society's conflict with the criminal is one of the chief 
factors in social evolution, and since the field of this conflict 
has broadened down the ages, it is but natural that crime 
has tended to increase, and in fact has increased with the 
growth of knowledge, intelligence and social morality. 
This increase of crime largely takes the direction of acts in 
opposition to new social prohibitions, which are neither 
accidental nor whimsical, but inevitable consequences of the 
increasing complexity of life. In general, new crime follows 
lines of greatest resistance to the new life of society. 

The preservation of life upon the earth and its gradual 
upward development have resulted, even in the lowest 
animal forms, from the operation of two great, unchanging, 
ethical principles, or laws of growth. 

The first is the fundamental law of adult life. It is the 
law of self-support, of self-interest, of earned benefits. 
"Whatsoever a man soweth, that shall he also reap." 1 The 

1 St. Paul, Galatians, vi, 7. 



2>J& Fundamental Laws of Nature 

adult must in general take the consequences of his own 
character and conduct — the survival of the fittest resulting. 1 

The second of these great principles may be called the 
law of the family. It is the primary law of self-sacrifice, the 
law of unearned benefits to offspring immature and helpless, 
without which the species must inevitably perish. 

Every kind of living creature must yield obedience to 
these laws, or degenerate and disappear from the earth. 
This is true equally of the social and the unsocial forms of 
life. Disobedience, however ignorant and unintentional, 
means death. 2 

The elevation of the individual, largely at the expense of 
his power of reproduction, seems to have been the greatest 
work of nature ; this elevation being measured in terms of 
size, strength and activity of body and of brain. 3 Nature 
has always insisted upon this continuance of individuation, 
upon the necessity for each living creature to strengthen and 
develop itself as the price of life and prosperity. This has 
been accomplished mainly through the operation of the law 
oi self-interest, of earned benefits. New and useful varia- 
tions have been provided thus with the opportunity to grow 
, and perpetuate themselves, and the consequences have been 
most important. 

' Later than the laws of the family and of adult life appears 
/another great ethical principle, nature's great secondary law 
•of self-sacrifice, the law of society, the law of mutual bene- 
fits ; which is perhaps best expressed in the words : " Do 
unto others as ye would they should do unto you." 4 Far 
more and different qualities are required in an individual to 
fit him for life in a community than will suffice for welfare in 

1 Spencer, Justice, p. 60. 

2 Even among the simplest protoplasmic existences the operations of both these 
laws may be dimly traced. Adults must always give of their strength to their 
progeny, but the demands of the second law are as yet very small. 

3 See page 3. * St. Matthew vii, 12, and St. Luke vi, 31. 



An Ethical Theory of Crime 379 

isolation. The social being must not only care for himself, 
his own life and that of his mate and offspring, but he must 
help care for others also, his comrades, and in supplying his 
own wants must not interfere seriously with the like oppor- 
tunity of others to supply their wants. Thus the liberty of 
each to develop and strengthen himself fully is limited by 
the necessity for a like liberty for all. 1 Without obedience 
to this law social life is an impossibility. Even the lowest 
social group has some needs in opposition to the self- 
regarding desires of its members singly ; and thus two in- 
exorable natural laws — the law of adult life providing for 
individuation, and the law of society providing for the social 
welfare — are apparently in direct antagonism, the one to the 
other. From the pressure of these laws upon each social 
group, and the adjustment of their antagonisms, results the 
criminal class, the creation of ever more numerous forms of 
crime, and the persistent increase of criminality upon the 
earth. The most civilized and progressive states have the 
most crime, and more crime as civilization increases; and 
this seeming multiplication of evil is not a sign of degenera- 
tion and decay, but of prosperity and upward growth to 
higher planes of life, of love, and mutual helpfulness. 

Progress always means greater strength, actual or poten- 
tial. This strength takes many forms, from purely physical 
<o intellectual and moral forces. Throughout the ages pro- 
gress has in the main taken the direction of increasing power 
to fight well ; at any rate it is most easily measured in such 
teqms. For long the gain was chiefly, almost entirely in 
physical strength, and at first all progress was enormously 
expensive. The shallow seas swarmed with microscopic 
life, which has left records of its existence throughout the 
rocks of our mountains, and in the coral reefs of ocean. 

1 Spencer, Justice, pp. 46, 60. 



380 Development always Necessary 

Myriads of undeveloped types perished. Practically help- 
less before external dangers, these low organisms were 
swept into destruction in whole groups by the crude natural 
forces around them. Some few survived for a season, grow- 
ing strong through fortunate changes, in a more kindly en- 
vironment. Of these, some learned gradually to modify 
their environment to meet their needs. A few have con- 
tinued and prospered until now. Always development has 
been necessary ; always growth into new strength has been 
demanded as the price of dominance upon the earth. 

During the age of Reptiles the mastery went to creatures 
of great size and enormous physical strength, but with little 
intelligence. Natural selection seemed working along a low 
plane of individual self-interest. The first great primary law 
was shaping life and seemed to rule alone. But in united 
effort there is greater power than any gigantic brute can 
possess, and social life, with its mutual helpfulness against 
enemies and stimulation of mental development, became the 
prime requisite for success in the struggle for existence, the 
great means to the attainment of a higher, a more unselfish 
life. A higher type of strength was coming in, with bound- 
less possibilities for the future along lines intellectual and 
moral. For with social life comes not only the development 
and the victory of intelligence and mutual aid overbrutish- 
ness and self-sufficiency — it is also the beginning of the 
victory of altruism over selfishness, of the love of others 
over the love of self. 

The most successful forms of life are gregarious; they 
have become social, and by the sharing of each other's dan- 
gers, joys and pains, have grown stronger, more intelligent, 
more loving. As intelligence develops, the period of youth- 
ful immaturity grows longer, the young are more helpless 
and need a more extended training, the demands of the 
primary law of self-sacrifice become larger and more exact- 



An Ethical Theory of Crime 381 

ing; but parental love cares for these things — obedience to 
this law of the family is so natural and customary that its 
neglect is rare. But the shield which social life casts around 
each individual member of the band preserves him in part, 
and more fully as life attains higher planes, from the imme- 
diate action of outer physical forces which have hitherto 
maintained the operation of the first great law — the law of 
earned benefits — securing the survival of the fittest. This 
fundamental rule of adult life is not abrogated, its strength 
is no wise lessened ; but its immediate pressure is in part 
transferred from the individual to the social group. Thus 
society becomes, as it were, responsible to nature for the acts 
of all its members ; for the danger immediately arises that 
the adult may no longer receive, in general, the good 
and evil consequences of his own character and conduct — 
that those ill fitted to live, and either negatively or positively 
harmful to the community, will be preserved, causing the 
weakening and final destruction of the body social, and the 
death of the individuals composing it. 

Herds of wild horses or wild cattle are stronger than the 
strongest of the solitary beasts of prey. When united they 
will not only defend themselves successfully, but will even 
trample their enemy to death. Only when through fear, or 
some other cause, the group ranks are broken and mutual 
aid ceases, can the lion kill his victim. 1 Almost all that is 
best in life is cultivated directly by this communal living 
together, with its mutual helpfulness and mutual self-restraint. 
Society confers unnumbered benefits upon its members, but 
the individual must do his part; as more is given him, from 
him more is required. In a word, the social being must live 
up to a certain standard of right action ; and since associa- 
tion has in part removed from him the pressure of crude 

1 Kropotkin, pp. 702-712. 



J 



82 Educative Social Selection 



natural forces, and these forces would now be utterly in- 
efficient in producing the type of character requisite, society 
must itself compel its members to live up to this necessary 
standard at its peril, on pain of social and individual degen- 
eration and destruction. This compulsion is fundamentally 
instinctive, and at first largely unreasoning, but it becomes 
with time a process distinctly willed and shaped by the 
social group. It is primarily, and for all time, an effort of 
nature to promote upward growth by a less wasteful process, 
using the awakened individual intelligence, combined with 
the inherited social instinct, to induce evolution from within 
the group, by encouraging useful variation from the average, 
thus producing the leader, and punishing harmful variation, 
— thus ultimately converting the mere malefactor into the 
criminal. Intelligent, educative, social selection is thus sub- 
stituted more and more fully, by the workings of natural 
law, for the crude, destructive, physical selection which is at 
first exclusively dominant. Social pressure from within the 
group unites with the pressure from without to uplift and 
socialize the individual. One of the most important forms 
of this inner pressure is called among men criminal prosecu- 
tion and punishment. 

A social group is fundamentally a kindred group. Its 
members feel a resemblance among themselves, anda sense 
of safety and of pleasure develops. There is general like- 
ness with individual variation. A social type is being formed. 
Divergence from this type is disliked, and antagonistic 
variation meets with conscious or unconscious persecution. 
" Relatively unintelligent though they are," writes Herbert 
Spencer, "inferior gregarious creatures inflict penalties for 
breaches of the needful restrictions, showing how regard for 
them has come to be unconsciously established as a con- 
dition to persistent social life. No higher warrant can be 
imagined," and therefore we may accept " the law of equal 



An Ethical Theory of Crime 383 

freedom as an ultimate ethical principle, having an authority- 
transcending every other." 1 

Morality seems in its beginnings to have been social 
rather than individual, 2 a morality of action rather than a 
morality of motive. The moral act, the good act, is that 
which conduces to the social welfare. The good individual 
is he whose conduct aids his social group. Morals, ethics, 
Sitten (German) all mean habits, customs, established ways. 
The moral act was originally the customary act. Among 
the lower animals, which possess not the moral sense — the 
knowledge of what is right and wrong, and consciousness of 
power to choose between them — the customary act is that 
which has been enforced by nature's inexorable laws. It is 
a right choice for them, but they do not know that it is 
right. We find moral actions before a perception of what is 
moral. Good and bad are insisted upon by stern processes 
of selection, and destruction of those which do not grow 
aright, by laws of nature and nature's God. There are no 
mistakes here. Not until human society is reached, and the 
moral sense developed with higher intelligence, do acts be- 
come regarded and named as good and evil, right and 
wrong. It is then that mistakes begin to be made by the 
social group, the good being called bad, and punished, and 
the bad, good, and rewarded. Ultimately nature judges and 

1 Spencer, Justice, p. 61, and see Chapter II of this book. The claims of nature 
upon society, that the operation of its laws upon the individual must be maintained 
by human legislation, have often been recognized by the nations of mankind. As 
Sir Henry Sumner Maine well puts it: "The happiness of mankind is, no doubt, 
sometimes assigned, both in the popular and in the legal literature of the Romans, 
as the proper object of remedial legislation; but it is very remarkable how few and 
faint are the testimonies to this principle, compared with the tributes which are 
constantly offered to the overshadowing claims of the Law of Nature." Ancient 
Law, p. 79. 

1 " In ancient times," writes Maine, "the moral elevation and moral debasement 
of the individual appear to be confounded with, or postponed to, the merits and 
offences of the group to which the individual belongs." Ancient Law, p. 127. 



384 Changing Standards of Morality 

chooses between social groups ; those which obey her laws 
prospering, and those which disobey degenerating and dis- 
appearing from the earth. Even among savages " who make 
hatchets of stones and rub sticks for a fire," we can see, 
writes Tylor, " that morality and happiness belong together 
— in fact that morality is the method of happiness." x This 
is undoubtedly true of the lasting happiness of the social 
group, and in this low stage of social development, the hap- 
piness of the individual is most closely intertwined with the 
continued welfare of the horde to which he belongs. 

But the morality necessary among such people is some- 
thing very different, much lower, more crude and simple 
than that demanded among civilized nations. 2 The moral 
man among savages — the man possessing the type of 
character requisite for the performance of acts most useful 
to the social group — is the ferocious fighter, cruel and 
bloodthirsty, the man who insists on his right of personal 
vengeance for every fancied wrong, the despotic and brutal 
tyrant. Might makes right. The hero of the stone or 
bronze age would be the criminal of to-day. Early morality, 
early ideas of good and evil, were suited to the needs of the 
dark ages, were necessary for the uplifting of a low humanity 
to the next higher stage of development. 

With increasing intelligence, and with growing interde- 
pendence of social life, there is a progressive enlargement of 
ethical view, and a widening and strengthening social demand 
that the individual shall live up to this higher morality, 
avoiding more and more actions seen to be socially harmful, 
and imitating more and more fully the growing ideal of the 
social type. For as Dr. James Martineau has well said : 3 
The authoritative measure of our duty to our fellow men is 
(in every age) "the mutually understood ideal." "Only in 

1 Tylor, Anthropology, p. 408. * Ibid., pp. 408-410. 

» Types of Ethical Theory, ii, 121, 123. 



Aft Ethical Theory of Crime 385 

proportion as men have come to understood concurrence on 
matters of right have they claims inter se." 1 The social 
mind has reached a certain estimate of conduct as good or 
bad, and the bad actions which the community punishes as 
wrongs against itself it calls crimes. 

This is the explanation of crime and of the necessity for 
its punishment. Individual variations, actively antagonistic 
to the prevalent social type, exist in all the higher social 
groups. Commonly they are social laggards, who have not 
kept pace with the average development toward the social 
ideal. The rebellious social laggard is the true criminal ; 
other laggards belong to the pauper class. Even the higher 
animal societies collectively punish the most dangerous anti- 
social acts. Much the same conduct, with a few additions, is 
punished by the lowest human societies now known upon the 
earth ; and, as social life attains to higher planes, more and 
more actions become socially harmful, are generally recog- 
nized as such, and added to the list of crimes — that is, the 
list of actions which society punishes as wrongs against itself, 
for the sake of the general welfare, for the preservation of 
the social life, for the elevation of the individual toward the 
ideal of the social type. 

Thus the production of crime and criminals is one of the 
saving processes of nature, substituting a lesser for a greater 
evil, promoting upward progress at a smaller cost. For if 
nature had not induced this increasingly severe social selec- 
tion and pressure within the group, toward the elevation of 
the individual and the improvement of the type, then that 
primitive and unreasoning form of pressure from physical 

1 This sets bounds to the acts which are rightly criminal in each stage of evolu- 
tion. Individuals may and do have a much higher estimate of good and bad, but 
until they convince society that their standard is the true one, crimes remain as 
before. The measure of a man's duty to society is fixed by the social estimate of 
good and evil; his duty towards God is co-extensive with his own ideal, and often 
goes far beyond the just claims of men upon him. 



386 Two Great Socializing Tendencies 

forces without the group, which always persists, must have 
continued alone in operation, destroying countless individ- 
uals and groups, without, if we may so express it, the attempt 
to educate them into the true lines of their upward develop- 
ment. 

But it must not be thought that this social education con- 
sists solely, or even chiefly, in a process of persecution and 
punishment of noxious members of the community. It has 
a brighter and most important side in the instinctive admira- 
tion and imitation of natural leaders, strong individuals, like 
their fellows, only somewhat better representatives of the 
developing social type. These two great socializing ten- 
dencies — strong natural forces — the one of instinctive ab- 
horrence and persecution, and the other of equally instinc- 
tive admiration and imitation, are present in all the higher 
social groups ; they work together in absolute harmony, and 
along the line of progress they induce, social pressure be- 
comes more and more strongly developed with increasing 
social evolution. This pressure is partly conscious and 
partly unconscious, in both directions, of praise or blame, of 
honor or persecution. The limits of the field of crime are 
largely coterminous with the extent of conscious persecution 
and punishment by the social group for wrongs against 
itself, and they are being extended continually with the 
progress of civilization. 

The criminal is the man who obeys too completely the 
commands of nature's first primary law — the law of self- 
interest, of irresponsible self-development. Often he is the 
man of the uncurbed ages, when brute strength and un- 
scrupulous cunning were more important, and persistent 
self-seeking more justifiable than now. The strongest al- 
ways rules, and it is well for the world that it should rule, 
for the strongest is in general the best — the least bad where 
all now seem to us to have been very bad. But the nature 



An Ethical Theory of Crime 2>&7 

of strength has changed, or rather, new and higher forms of 
strength have appeared continually, and this process will 
continue, higher strength being accompanied by a higher 
morality. 

Throughout the chapters of this book evidence has been 
given to show how in every stage of human history the 
needed steps of progress, strengthening the social group, 
have resulted from the enforcement of new social pro- 
hibitions, creating new forms of crime and multiplying 
criminals. In Chapter III we have seen how the three great 
primitive crimes — treason, incest, evil-witchcraft — strike at 
the very life of society ; the imperative necessity that such 
acts be punished ; the instinctive abhorrence and passionate 
desire for vengeance felt by every normal member of the 
community; the speedy and often ferocious punishment. 
Later has appeared the necessity for the coming of the king, 
the great war leader, the expression of the unity of the 
people, who can do no wrong, and the wide extension of 
treason laws fostering his authority and securing his power. 1 
A strong religious belief, binding the people firmly together 
in reliance upon the help of superhuman powers, is also a 
distinct military advantage. A powerful religious organiza- 
tion is in many ways a most important step in social pro- 
gress. This is built up and maintained by the punishment 
of sin and heresy as crimes. 2 

The uniting of many little warring peoples, of the same or 
different races, into a strong nation has frequently resulted 
from the fusing and centralizing power of a victorious and 
mighty king, aided by a strong and proselyting Church. 
Even the best of religions has often been taught by the 

1 See page 61, and Chapter VI. " The first steps towards civilization can neither 
be taken nor maintained by primitive nations without the intervention of an ener- 
getic despotism." Waitz, Anthropology, p. 359. 

2 See Chapter VI, p. 134,"*/ seq. 



388 Nation Making 

sword, and enforced upon unwilling peoples by criminal 
punishments. Thus the heathen Saxons of the continent 
were Christianized by Charlemagne, and the petty Anglo- 
Saxon kingdoms united into the English nation. 1 As 
Walter Bagehot has well shown, the greatest need of primi- 
tive peoples is law, strong law ; it being much more import- 
ant at first that the law should be strong than that it should 
be just. " Nation making is the occupation of man in 
these early ages, and it is war that makes nations;"* firat 
war and subjugation, followed by strong law — mostly crim- 
inal law — and the fusing, unifying pressure of sure punish- 
ment for all rebels. Such work is cruel, but necessary, for 
it makes for the permanent uplift and strengthening of the 
human race. The stiff-necked individualism of primitive 
man had to be in large part crushed out of him, and this has 
always been the manner of its accomplishment, the way of 
human domestication and socialization. The process made 
many criminals. 3 

Robbery and theft ; murder and homicide, are, as we have 
seen, not crimes among low savage races. How and why 
mankind has converted these acts into crimes as civilization 
developed, it is hoped that the reader already knows. Un- 

1 See also page 354. 

'Bagehot, Physics and Politics, pp. 21, 25, 50, 77. 

• See Chapter VI. After national unification and consolidation have been accom- 
plished, all the great progressive modern nations have found it necessary to do 
away with criminal prosecution for conscience sake. Religious crimes have 
ceased in England, the United States, Germany, France, Italy and even in Spain; 
for it was found that the enforced weight of almost unchanging religious beliefs 
was crushing out all individuality, all hope of helpful variation and upward 
progress. Spain, France and Italy for many centuries continued the criminal 
prosecutions of the Inquisition, chose their crimes wrongly, and stunted their 
national growth by their own evil choices; for nature inexorably visited upon 
these nations the evils they had provided for themselves. But there is undoubt- 
edly a strong argument to be made in favor of criminal punishment for religious 
offences during the early days of nation-making and the socializing of man. 



An Ethical Theory of Crime 389 

doubtedly the criminalizing of such conduct greatly strength- 
ened the nations, through increased security, confidence, 
and economic prosperity. 

In modern times the great civilizations of the world have 
been taking a more and more industrial and democratic 
character. New life, upward growth, is largely in this direc- 
tion. New forms of crime are mainly industrial and social. 
Laws of forgery and fraud and fraudulent bankruptcy, 
statutes creating new forms of theft, factory and mines acts, 
and other legislation of social guardianship, prevention of 
cruelty to children and animals, education laws, prohibitions 
of multitudinous .little annoyances and damaging acts, the 
criminal prosecution of drunkenness — all such are manifes- 
tations of the rising standard of our recognized duty to our 
brother man, and are most influential in raising that stand- 
ard still higher, and in stimulating the lagging members of 
the community to a more healthy, more social, more truly 
moral life. There is no doubt also that with the rapid 
spread of knowledge and development of intelligence, with 
the diffusion of practical Christianity and brotherly helpful- 
ness among all classes, our civilized nations have grown 
stronger against foes without. Compare the armaments of 
the great nations of Europe and America with the war power 
of the uncivilized, laggard, and unprogressive nations of the 
world, and who can doubt this? No one who understands 
the facts can believe even in the possibility of a great 
Mohammedan invasion and conquest of Europe in modern 
times, and a few thousand European and American soldiers 
can capture and hold Pekin, the capital of China, and dictate 
terms to three hundred millions of people. Our strength is 
not to be expressed merely in guns, warlike equipment, and 
the wealth to provide more such. The men behind the 
guns, intelligent, patriotic, disciplined and mutually reliant — 
these are the major part of our strength, and they are the 



390 Limitations to Rule of Selfishness 

product of an era when there is more crime than in any past 
age, because more kinds of conduct are recognized now to 
be socially bad, and punished for the general uplift to a 
civilization still better, stronger and more moral. 

Although the progressive welfare of the individual maybe 
considered as the great end of life, yet the preservation and 
prosperity of the social group must take precedence of the 
preservation of the individual, for membership in a commu- 
nity is the chief means for his upward development and well- 
being. The occasional destruction of an individual, or even 
of many individuals, may be necessary for the welfare of the 
social group. Such losses may be inflicted by foes without 
through warfare, or they may be inflicted by the commu- 
nity upon itself through punishment. In either case society 
not only has the right but is in duty bound to sacrifice the 
individual for the general welfare. The death penalty for 
heinous crime is as justifiable, if society deem it necessary 
for its well-being, as is the demand upon the citizen-warrior 
to meet death upon the battle-field, or upon the doctor to 
remain steadfast at his duty in the plague-stricken city. The 
good of society is the prime reason for the punishment of 
criminals, and their reformation is justifiable only when it 
conduces to this end. 

As an ethical standard, the law of adult life, if unlimited, 
certainly teaches the duty of the individual to grow strong 
by securing for his own use all possible good things of life, 
irrespective of the welfare of others — might making right. 
Nature's first limitation to this rule of selfishness is found in 
the imperative necessity for the care of offspring: a limita- 
tion enforced among the lower animals by insensate physical 
forces around them. The second great limitation is found 
only within social groups, and is enforced through the medi- 
ation of social beings, largely through social punishment. 

We have, therefore, on the one hand, the great fundamen- 



A?i Ethical Theory of Crime 39 1 

tal law of adult life — the law of self-support, self-interest and 
earned benefits — the necessity for continued individuation, 
the permanent good in physical strength, in independence 
and self-reliance, in courage even in isolation. The law of 
self-development is not negatived, scarcely even subordi- 
nated, but the sphere of its operations has been limited grad- 
ually by the working of nature's two great altruistic laws. 
Notice that these laws both conduce to the upward develop- 
ment and strengthening of the individual, and yet, with this 
higher evolution, especially in the intellectual and moral 
field, with the longer infancy and greater helplessness of 
childhood, with the increasing complexity of social life and 
differentiation of employments, the limitations which these 
altruistic laws put upon the operation of the rule of self-in- 
terest become ever greater, more extended and more imper- 
ative. 

It is the old, old problem of the rights of the individual 
versus the welfare of society. Some liberty must be per- 
mitted, the individual must have the opportunity to grow, to 
develop his powers, individuation must continue. On the 
other hand, even in animal communities there are some 
restraints upon the noxious waywardness of individuals, and 
with higher evolution these social demands become ever 
more numerous, and society more sensitive to inner harms, 
more able and ready to punish for them. Not only does 
the criminal law cover an ever widening field of duties of the 
citizen to the state, and also to his fellowcitizens, because an 
injury to one becomes, and is recognized as being more and 
more an injury to all, but the duty of parents to children is 
defined and largely regulated by criminal statutes. Society 
is no longer contented with negative commands, it enjoins 
positive duties also ; — not only, thou must not kill or cripple 
thy child or fellow-man, under penalty of punishment as a 
criminal ; but also, thou must have thy children educated, 



39 2 A Progressive Social Equilibrium 

thou must guard thy operatives in factory and mine from 
all unnecessary dangers. There must be a progressive 
equilibrium established between the rights of the individual 
and the needs of society, between a man's duty to himself 
and his duty to his fellow citizens. The rights of one must 
be balanced continually with the rights of all, for only in this 
way can persistent, yet conservative progress be assured. 1 
The nation that does this is the nation that advances contin- 
ually in civilization, strength, morality and leadership upon 
the earth. 2 

But this ever nicer adjustment of mutual rights and duties 
means constant friction, and constant education by new 
social prohibitions, increasing forms of crime, and inducing 
multitudinous acts of petty rebellion {i. <?., crimes) against 
society. For penal laws are not enacted and enforced unless 
the need for repression is recognized, and opposition will 
probably be more frequent in a community in proportion to 
its progressiveness, and to the extent of individual liberty en- 
joyed ; that is, in proportion to the opportunity for variation 
and individuation in obedience to nature's great primary law 
of self-development. It takes time and hard pressure to 
convince men fond of freedom that conduct, until recently 
considered harmless, is bad and must be abandoned. 

Nature thus compels nations to make selection of apro- 
gressive social education, and to enforce it by group pres- 

1 " Social necessities and social opinion are always more or less in advance of 
law. We may come indefinitely near to the closing of the gap between them, but 
it has a perpetual tendency to re-open. Law is stable; the societies we are speak- 
ing of are progressive. The greater or less happiness of a people depends on the 
degree of promptitude with which the gulf is narrowed." Maine, p. 24. 

*Rome, the Teutonic States that succeeded to her heritage (see pp. 62-3), 
England, Germany and the United States all bear witness that the enduringly 
successful nations are those in which wise conservatism is infused with a little 
leaven of progressiveness — nations where individual liberty is so highly prized 
that a large and fitting sphere is secured for its development, as the price of union 
for the commonweal. 



An Ethical Theory of Crime 393 

sure. A wise social education means strength, civilization, 
happiness, leadership ; an unwise, means weakness, deca- 
dence, and national death. For nature chooses inexorably 
among the nations those which on the whole make for the 
uplift of mankind to better things — that is, nations which in 
the main serve God well, for God is served wherever man is 
bettered. The survival of the fittest means " the success of 
the most civilized, or of those who potentially at least repre- 
sent humanity's progress." 1 The laws of nature are working 
out on large lines the good of all. Nations are the instru- 
ments, and those that do the work well prosper. Whether 
or not a nation is to prosper depends mainly upon its own 
choices — what type of man it holds up to honor and imita- 
tion, and what type it dislikes and punishes. Higher civi- 
lization implies increasing interdependence between man and 
man, the social body becomes more and more sensitive to 
little rights and wrongs, the kinds of conduct injurious to 
its welfare become more numerous, social prohibitions are 
multiplied. There are many new forms of crime, many new 
forms of evil, many new criminal acts recorded in the 
statistics. 

Crime, therefore, results from the limitation of nature's 
law of self-interest by her altruistic laws. The anti-social 
individual who will not submit himself to these limitations, 
but insists upon acting in opposition to social necessity, he 
is the typical criminal. Increasing crime is a direct conse- 
quence of the enlarging spheres of operation of these two 
great ethical principles or laws, necessitating care for family 
and mutual helpfulness among fellow members of a commu- 
nity ; in other words, it results from the growth of civiliza- 
tion, the development of knowledge, intelligence and social 
morality. The demands of a nobler fatherhood, of a grandly 

1 Washburn Hopkins, " England and the Higher Morality " The Forum, Jan- 
uary, 1900. 



394 Good as the Goal of Evil 

widened sense of brotherhood, have resulted in a continued 
multiplication of social prohibitions, and an ever larger host 
of criminals, punished that society may grow aright, that 
true liberty may be secured to the great majority of citizens 
to develop their powers fully under the shield of law. Crime 
is the reaction against growing pressure toward a higher 
altruism, a larger mutual helpfulness, a nobler, stronger civi- 
lization. It is part of the price we are paying for this 
growth to better things. 

Now at last we can see that that which the poet dreamed 
and longed for is true in very deed, for the goal of this great 
mass of evil, enlarging through the many centuries of social 
life upon the earth, is the goal of social welfare fore-ordained 
from the foundation of the world, it is the goal of human 
good. 

" Oh yet we trust that s omehow good 
Will be the final goal of ill." 

The giant, Humanity, has been at work, ever rolling an 
increasing weight of crime up the mountain of social pro- 
gress. Sisyphus-like the task has seemed ; for the ponder- 
ous mass has fallen back many, many times, wiping out the 
pathway made, so that portions of the work had all to be 
done anew. 1 But the steepest gradient will not be .found 
near the top, and it is quite possible that the easier ascent 
is even now being attained by one or two of the most ad- 
vanced nations. 2 

1 In times of anarchy, like Stephen's reign in England, evil deeds cease to be 
punished, and cease even to be regarded as crimes. (See pp. 151-153.) Where 
forms of crime are wrongly chosen, as in Spain, Italy and France throughout the 
centuries of the Inquisition (see pp. 353-355), and national sickness and degen- 
eration results, a return to health means that the conduct wrongly punished must 
have been made non-criminal, and the forms of crime proper for their stage of 
civilization substituted. 

2 The peculiar and new crimes of any era take the direction of greatest resistance 
to the new life of society. Given an understanding of the way in which a nation 



An Ethical Theory of Crime 395 

is advancing toward its ideal, a statesman can recognize the early social prompt- 
ings toward the creation of a new form of crime, and may introduce wise legisla- 
tion looking toward this end, in time to meet halfway the increasing demand for 
social punishment, thus advancing the nation along its true path without the severe 
suffering and friction, due to clashing interests, which have often been the fore- 
runners of wise enlargements of the criminal code. 

" He who would win the name of truly great 
Must understand his own age and the next, 
And make the present ready to fulfill 
Its prophecy, and with the future merge 
Gently and peacefully, as wave with wave." — Lowtll. 

The wise lawmaker, by the initiation of needed criminal legislation, before social 
suffering makes the demand imperative, may do much to promote this peaceful 
blending of present and future along lines of true upward progress. 



I 

\ 



APPENDIX I 

SPECIAL FORMS OF ENGLISH CRIME. 

Stealing was punished from earliest historic times with 
greater severity than almost any other offence. " It is cer- 
tain," writes Stephen, " that at every period some thefts 
were punished with death." 1 Yet at first it was not a crime, 
but a harm to an individual, which he might punish or not, 
as he chose, if he had the power, or could secure the aid of 
society in the prosecution of the offender. Even when theft 
in general had been made felony in England, many classes 
of things — important things — were regarded by common law 
as non-stealable, as late as the sixteenth century. Thus, 
land and things growing out of the earth could not be stolen, 
but only " movable personal property." Deeds, charters and 
instruments relating to real property could not be stolen, for 
such deeds were declared to " savour" of the realty, and were 
therefore excluded from the possibility of larceny. Only 
things possessing a definite value could be stolen, and " val- 
uable" in early days " implied serious practical importance, 
as opposed to mere fancy or amusement." 2 Thus, many ani- 
mals, such as peacocks, mastiffs, hounds, spaniels and tame 
goshawks, could not, it was calmly argued (19 Hen, VIII., 
p. 2, no. 11, 1528), 3 be subject to larceny "car ils sont pro- 
prement choses de plaisir plus que de profit." It was even 
thought " no felony to take a diamond, rubie, or other such 
stone (not set in gold or otherwise) because they be not 

1 Stephen, iii, 129. * Ibid.. 143. 

'See Year-Books. 

(396) 



Special Forms of English Crime 397 

of price with all men, howsoever some men do hold them both 
dear and precious." 1 

Upon such subjects the common law was very vague and 
uncertain. It was believed that a " fraudulent taking" was 
essential to larceny, and fraudulent breach of trust was not 
regarded as a crime until a very late date.' Thus, a servant, 
or any one intrusted with the management of property, was 
probably unable to make himself a criminal by its misappro- 
priation. 1 At most, the offender was guilty of a civil wrong. 
But the legal decisions are contradictory, and " fraudulent 
convertion" was sometimes declared felony, and then again 
no-felony, by common law. Gradually a mass of statutes 
came into existence to supply omissions and correct defects, 4 
which statutes were consolidated by a law of 1827, and again 
in 1 861, by 24 and 25 Vic, c. 96. 

Thus, in the development of English civilization, it has 
slowly become established : that theft is crime, rather than 
a mere tort; that documents and records relating to land, 
etc., can be stolen; 5 that a servant misappropriating his 
master's property, or a fraudulent trustee, is a criminal; 
that the man who takes timber or minerals from another's 
land without his consent is a thief, as is also the man who 
takes a valuable dog, peacock or precious stone. Many men 
have been, and are being punished as criminals for such 
offences — acts in opposition to new social prohibitions, cre- 
ated and enforced under the influence of increasing knowl- 
edge, intelligence and social morality. 

Slave trading and slavery were stamped as crimes of the 
greatest enormity only after long agitation. We have seen 

1 See J. Hales, quoted by Stephen, iii, 143. 

* Stephen, iii, 144. 

1 Year-Books, 147 1 (49 Hen. VI, p. 14, no. 9, and 3 Hen. VII, p. 12, no. 9). 

* For a list of luch statute! see the repealing act (7 and 8 Geo. IV, c. 17), 1827. 
5 See (8 Hen. VI, c. 12, § 3) 1429, the first statute of this class. 



39 8 Slave Trading made Criminal 

how the business was considered thoroughly honorable in 
Elizabeth's days, and that the virgin queen herself shared in 
the profits of such expeditions. In 1786, one hundred and 
thirty ships, carrying 42,000 slaves, were engaged in this per- 
fectly legitimate occupation. In 1787 was formed "The 
Society for the Suppression of the Slave Trade." In 1791 
and 1798 the question of abolition was debated in Parlia- 
ment, but the majority was opposed. Beginning with 1806, 
a series of acts rapidly changed slave-trading from a lawful 
business into a capital crime. These were, 46 Geo. III., 
sess. 2, c. 52, 1806; 47 Geo. III., sess. 1, c. 36, 1807; 51 
Geo. III., c. 23, 181 1 ; and several others, all consolidated in 
5 Geo. IV., c. 113, which largely increased the number of acts 
punishable. A statute of 1837 Vict., c. 81, § 1), removed 
the death penalty. The law had done its work. Slave 
trading had ceased. 

Smuggling was everywhere prevalent along the English 
coasts during the latter half of the eighteenth and early nine- 
teenth century, induced by the heavy taxes and great expansion 
of commerce. It was not a crime, despite severe laws against 
it, for it remained generally unpunished, and the public con- 
science approved of the traffic, until duties were largely re- 
duced. Even Adam Smith expressed his sympathy with 
smugglers, and the nation supported them by buying their 
goods, and not enforcing the laws against them. The " free- 
trader was repaid if he saved one cargo out of three," and 
" he frequently saved all," and grew wealthy by his ventures. 1 
Bands of armed smugglers " loaded waggons and pack- 
horses on the open beach, and met with no opposition from 
the customs officers." In half a year, " 1835 horse loads of 
tea, and 1689 of wet and dry goods were safely landed on the 
Suffolk coast," while about " 2000 hogsheads of spirit" were 
run annually " on the coasts of Hants, Dorset and Devon, 

1 See Reports of Parliamentary Commission. 



Special For 77i s of English Crime 399 

where it took nine years for the customs officers to capture 
a like amount." When duties were reduced, the public no 
longer favored the traffic, and the marine police succeeded 
in punishing many of the smugglers and in practically sup- 
pressing their trade. This is a good instance of the deter- 
mination of crime by the prevalent social standard of morality. 

The robbery of ships in harbors and of stores in dock yards 
were common offences in the reign of George III., and were 
not successfully punished at first. There were " innumera- 
ble receivers" for the stolen goods, and " hardly any pre- 
ventives" to such robbery, but the nation did not approve 
such deeds, and a more efficient police soon checked the 
evil. 

Duelling was an "affair of honor," and certainly not a 
crime until the present century. 1 In 1830, the survivor in a 
duel was declared guilty of murder by two judges, and three 
years later the seconds were likewise declared to be crimi- 
nals. The middle classes were becoming strongly opposed 
to this habit of the gentry, and juries were found willing to 
convict the principals, but not the seconds. About 1843 a 
society was formed for the abolition of duelling, and the evil 
practice received its death blow, when, in 1844, the articles 
of war imposed cashiering as a penalty for this offence. 

Interve7itio?i in Foreig7i Hostilities. Private interference 
in foreign hostilities was not a crime until the nineteenth cen- 
tury. Public opinion highly favored soldiers of fortune, who 
sought military service at their pleasure. 2 Such conduct 
was first declared to be criminal by the American govern- 
ment, in acts of 1794 and 1818. England followed suit in 
59 Geo. III., c. 69. 

Rogues and Vagabonds. Laws against vagrancy were many 

1 But see rotate Trials, ii, 1034 and 1042, for a decree of the Star Chamber 
against duels, showing early attempt to repress. 
* See Froissart's Chroniclts. 



400 Conspiracy in Restraint of Trade 

in the eighteenth and early nineteenth centuries, and more 
and more actions have been included as misdemeanors of this 
class, until now, " any person of bad character who prowls 
about, apparently for an unlawful purpose, is likely to be treated 
as a rogue and a vagabond." 1 Probably such laws were still 
more inclusive in the middle ages, when they were largely 
decreed against desertion of work and residence, and attempts 
to raise wages, but the laws were not generally enforced. 
Now, we strive to punish only those " who really prefer idle- 
ness to parish relief," or honest work. The efforts to sup- 
press such offenders by a vigorous police have greatly in- 
creased." 

Laws punishing conspiracy in restraint of trade have been 
the occasion of very bitter discussion in modern times. The 
great question at issue has been : Within what limits are 
trade unions justifiable? Freedom of trade is a new thing. 
For many centuries the regulation and limitation of industry 
was an important part of the duty of Parliament. 3 The 
"Combination Laws" are so many attempts, long persisted in, 
to make all combinations of laborers to raise wages criminal. 4 
The later statutes practically decreed that a laborer may go 
where he pleases, and make the best individual bargain he 
can for his toil, but he must not aid in bringing the pressure 
of numbers either upon employers or his fellow working- 
men. If he does this he becomes a criminal in the eyes of 
the law. Apparently the only freedom sought was freedom 
of employers from coercion by the employed ; but in those 
days the franchise was very greatly restricted, and the upper 
and middle classes made these statutes, which were finally 

1 Stephen, iii, 274; for statutes see 17 Geo. II, c. 5; and 5 Geo. IV, c. 83, 1824. 

1 Stephen, iii, 275. 

8 See Statutes of Laborers, regulating wages, etc. 

4 See 2 and 3 Edw. VI, c. 15, 1548; the Consolidation Act (5 Elii., c. 4), 
1562; (7 Geo. I, st. 1, c. 13) 1720; and (40 Geo. Ill, c. 60) i8co; which last made 
the penalty imprisonment at hard labor for two months. 



Special Forms of English Ciime 401 

repealed in 1824-25. But, as the statute law was narrowed, 
the common law was expanded to fill its place, and judicial 
decisions against laborers reduced the liberty they expected 
from the repeal of the combination laws almost to nothing. 
Finally, an act of 1875 specially protected all " combinations 
in contemplation or furtherance of trade disputes," 1 and the 
persistent attempts to make trade unions, as such, criminal, 
have failed. 

A similar attempt, now very prominent in the United 
States, to make trust combinations, as such, criminal, is like- 
wise doomed to failure ; for both trade unions and trusts, 
despite the many evils connected with them, are necessary 
instruments in the upward growth of civilization. The aim 
should be wise legal regulation, not criminal suppression, 
which is indeed almost impossible. 

1 Stephen, iii, 227. 



APPENDIX II 

STATISTICS OF ENGLAND AND WALES. 

The statistics of indictable offences from 1853 to t86o 
present a strange phenomenon. The totals mount from 
2 9>359 m J 854, to an average of more than 53,000 in 1857- 
61, for the same classes of offenders. Does this great vault 
in the statistics really mean that the actual amount of these old 
crimes in England was multiplied suddenly in a like degree? 
The evidence does not warrant this conclusion. The great 
recorded increase falls wholly under the head of simple lar- 
ceny, and was due to the enforcement of the Criminal Jus- 
tice Act of 1855, which relates only to such offences. 1 
Undoubtedly, social repression for acts of petty theft greatly 
increased at this time, but it seems impossible to believe that 
such conduct had not been truly criminal for many years 
previous. When death or transportation were the only legal 
penalties for a larceny of forty shillings, or even five shillings, 
such conduct may not have been crime, because society 
would not often inflict such punishments ; but this was at the 
end of the eighteenth and beginning of the nineteenth cen- 
tury, and since then social pressure has been growing steadily 
stronger, as the following table reveals. It is most probable, 
therefore* that the great increase in the statistics for indictable 
offences in 1857 does not mean a corresponding growth in 
the actual amount of such crime among the people. The 
increase of delinquency came earlier, when various kinds of 
petty larceny and other offences were re-criminalized by 
society, after the introduction of milder penalties. 

1 See Judicial Statistics, 1857. Introduction, p. xiii. 
(402) 



Statistics of England and Wales 



403 



Table Showing the Rapid Increase of Convictions and Punishments for 
Certain Offences as the Penalties Became Less Severe. 



Shooting at. Stabbing 
\, etc. 

In the year 1S17 

In the year 1827 

In the year 1S37 

In the year 1S47 

In the year 1S57 



Ho use ■ Breaking. 

In the year 181 7 

In the year iS?7 

In the year 1837 

In the year 1847 

In the year 1857 



Simple Larceny. 

In the year 181 7 6,420 

In the year 1 827 8,358 

In the year 1 837 j 10,409 

In the year 1847 j 12,778 

In the year 1857 | 5,793' 



Forgery, etc. 

In the year 181 7 

In the year 1827 

In the year 1837 

In the year 1847 I21 

In the year 1857 184 



en 



26 

35 

41 

118 

208 



152 

240 

403 
506 
568 



62 
46 
42 



20 

35 
36 

4 
9 



152 

240 

o 

o 

o 



62 
46 

o 
o 

o 



o2 



2 
42 
II 



294 

172 

IO 



I,300 
1,897 
1,877 
I,l8o 

3 



3i 

40 
6 



C C/) 

<u 

Cm 



58 



171 



783 



80 



Mi 

G 
OX)-- 



3 

72 
130 



109 
334 
387 



935 

1,141 

916 

992 

1,232 



11 

81 
93 



c/5 



4,047 
5,152 
7,546 
io,577 
3,6i4 



The very small totals of commitments for all indictable 
offences in the early years of the nineteenth century (4,605 
in 1805), points to the de-criminalizing of many forms of 
evil conduct, and a corresponding decrease in the actual 
amount of the nation's crime. The growth of intelligence 
and humanity among the English people seems to have been 
directly responsible for this decrease, contrary to the general 

1 This does not include the many thousands convicted by Courts of Summary Jurisdiction, 
under the Criminal Justice Act of 1855, but shows the decreased use of the higher courts for the 
trial of such offenders. 



404 How Evil Acts Ceased to be Crimes 

trend of the evidence and argument of this book. The ex- 
planation is simple. The nation demanded more righteous 
penalties, deeming the punishment of death, or even trans- 
portation for minor crimes, greater evils than the acts them- 
selves. There was strong evidence — as shown in Chapter 
XI. — that many offences, " not of atrocious nature," but pun- 
ishable with death, were " never brought under the review of 
magistrates at all," so great was the reluctance to prosecute. 
Among the evil acts very rarely punished, Judge Colquhoun 
mentioned shoplifting and various other larcenies, forgery, 
housebreaking in the daytime, highway robbery, horse, cat- 
tle and sheep stealing, burglary without entering the house, 
acts of violence on the person, frame breaking, and various 
other minor offences. Many of these evil acts had doubtless 
ceased to be crimes from lack of social punishment. Some 
of them, we are told, were fast losing in the public mind the 
idea of evil formerly associated with them. This is interest- 
ing and important as showing the rapid lowering of the social 
standard of morality, when acts rightly criminal are no 
longer punished as crimes ; and if this be true, its counter- 
part appeals even more strongly and naturally for our belief, 
namely, that the enforcement of new and wise social prohi- 
bitions is very influential in elevating the moral standard of 
the lower masses of the people. The English nation was not 
powerless to arrest and punish dangerous malefactors, as the 
death penalties for murder (seepage 260), and the convic- 
tions for burglary 1 abundantly prove, but it deliberately chose 
to leave many of its laws unenforced for a time, rather than 
that minor evils should be punished too severely under ex- 
isting criminal statutes. It did not attempt to substitute 
lynch law, for that is practically never used for minor offences. 

1 Total convictions for burglary in the years — 

1817 1827 1837 l8 47 1857 

374 368 232 346 473 



Statistics of E?igland and Wales 405 

Passive opposition to the enforcement of the cruel laws, and 
urgent recommendations for change were the means em- 
ployed. The rapid increase of social prosecution and pun- 
ishment for old offences of wounding, forgery, housebreaking, 
and various kinds of simple larceny, from 181 7 to 1857, as 
less severe penalties were legalized, is strong evidence that 
these acts were not really crimes at the beginning of the nine- 
teenth century, when the total of all punishments for indict- 
able offences was very small indeed. 

One of the most striking characteristics of the old judicial 
statistics was the inclusion among serious crimes of a great 
mass of acts of petty larceny, and other minor offences against 
property, while many forms of even serious violence against 
the person remained unnoticed and unpunished. This would 
indicate that the social conscience condemned one of these 
two great classes of evil acts much more strongly than the 
other, and history proves that this was so. Even most des- 
perate attacks upon the person, including worst attempts to 
commit murder, were not declared serious crimes until 1803, 
and this law was again greatly extended in 1829 and 1861 ; 
while common assaults were regarded as so highly natural, 
and occurred so frequently unpunished, that the English 
people were thoroughly hardened to them, and certainly did 
not think of them as crimes until long after 9 Geo. IV., c. 
31, 1829, which for the first time made such conduct legally 
punishable by fine and imprisonment, on conviction before 
justices of the peace. In the same year the metropolitan 
police force was established, and seven years later, in 1836, 
the borough police; but it was not until 1857, by 19 and 20 
Vic, c. 69, that the establishment of a disciplined police force 
was made compulsory throughout all the counties of Eng- 
land and Wales. The nation thus greatly increased its ability 
to arrest and prosecute for minor acts of evil, as well as for 
more heinous offences. Meanwhile the methods of proced- 



406 Summary Jurisdiction of Justices 

ure in the criminal courts were being greatly simplified. In 
the Judicial Statistics for 1857-58 (page V.) we read : " From 
year to year the jurisdiction of justices has been enlarged, 
important classes of offenders have been added," but " no 
previous attempt has been made to show in any connected 
form the nature and amount of the summary proceedings in 
criminal matters, a large branch of the administration of jus- 
tice which begins and ends as a police proceeding. All that 
has heretofore been known of these now very important ad- 
judications has been from prison returns, in which the actual 
numbers committed only have been shown. The summary 
jurisdiction of justices, that is, the power to adjudicate at once 
and punish without the intervention of a jury, has received 
very great extension within the last few years." 

The old means of social repression and punishment in 
England had become more and more painfully unfit to meet 
the needs of the developing industrial civilization. Society 
would take great pains, and incur great expense oftentimes, 
to apprehend and convict a murderer, but on account of the 
great difficulty of bringing minor malefactors to justice, busy 
people thought it almost better to let them escape, unless 
caught in the act, than to spend so much time, energy and 
money in securing their punishment. The times were ripe 
for reform, and the statutes which made compulsory an organ- 
ized police force, and greatly widened the powers of courts 
of summary jurisdiction, contained also many new social 
prohibitions. By such means there was made possible a 
repression of minor acts of evil, such as had been un- 
dreamed of hitherto. In the police returns for 1857, the 
first year of the enlarged judicial statistics, "the offence 
first in magnitude is assault." There were 60,695 common 
assaults, and 12,750 assaults on peace officers. The work of 
the trained police force induced these last offences, and the 
faithful performance of police duty resulted in the arrest and 



Statistics of England and Wales 407 

prosecution of these 60,695 other peace-breakers, who would 
otherwise have remained for the most part unpunished. In 
that same year 75,859 persons were prosecuted for drunken- 
ness ; under local acts and by-laws, 21,112; under police 
acts, 25,913 ; and under wilful damage and trespass, 13,583. 
Until 1847, juvenile offenders were punishable as severely as 
hardened criminals, and transported or imprisoned with 
them ; but because of the terrible severity of the laws, bad 
children were probably permitted to escape, for the most 
part. In other words, children could hardly make them- 
selves criminals, by their evil actions. In our day the num- 
ber of such criminals is very large, because reformatory pen- 
alties have induced social prosecution. 



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SECOND PART 
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(chapters V TO XV INCLUSIVE) 



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INDEX 



[Numbers refer to pages.] 



Abipones of S. America, respect con- 
sanguinity, 44, 45, 84; regard evil- 
witchcraft crime, 86 ; conjugal fidel- 
ity of, SS. 

Abyssinians, regard as crime, treason, 
105 ; incest, 106. 

Adultery, a tort or crime, 13, 15; pun- 
ished by the Soko, 25; by storks 
and ravens, 27, 28; by savages, 59, 
113; first tort to be made a crime, 
112; in Anglo-Saxon dooms, 141, 
143; in Church courts, 175, 192 



Anne, reign of, 241. 

Arabs — see Bedouin Arabs. 

Araucanians of S. America have primor- 
dial usages for laws, 56; punish 
crimes summarily with death, 59, 
80; punish treason, 82, incest, 84, 
evil- witchcraft, 86; private quarrels 
of, 88-9. 

Arbitration, substitute for blood revenge, 
18, 19. 



Aristotle, on the difficulty of establishing 
social discipline, 39. 
death penalty for, 244; increasing | Arson, in Anglo-Saxon times, 143; ma- 
in Germany, 317. der Normans, 160-162; under 



.■Ethelberght, dooms of, 135, 138, 142. 

.Ethelred, 142, 144. 

vEthelstan, 140, 143. 

Africans — see Negroes, and various 
tribes. 

Aht tribes, Vancouver Is., abhor incest, 
44, S3, and evil -witchcraft, 84-5; 
lovaltv of, 82; offences rare among, 
87. 

Aleuts of Alaska, punish for treason, 
49, 82, and for incest, 79, 83; ob- 
serve ancient customs, 55-6. 

Alfred, reign of, 137-8. 

Amercerments, old English system of, 
156-7. 

American Indians, have no idea of moral 
good and evil, 46, 78; social pun- 
ishment among, 55, 78; regard as 
crimes, treason, S2, incest, 82-4, 
and evil witchcraft, 84-6. (See 
different tribes.) 

Animals, punish for acts akin to treason, 
24-6, 30, 31 ; adultery or incest, 
25,27,28,31; psychology of, 31-6; 
punish because of social reflex ac- 
tion, 32; first protected by law, 
2-;. 358: social life of, 381, 382, 
385 ; instinct for conscience in, 383. 



Tudors, 215, 216; early common 
law crime, 257. 

Aryans, early ideas of crime among, 14; 
characteristics of, 17; customs of, 
115-116. 

Ashantes, ancestral teachings of, 57; 
regard treason crime, 105. 

Assassination, among Sicilians and Sar- 
dinians, 322; in Italy and Spain, 

323- 

Assyrians— see Eastern Nations. 

Athenian, Bill of Pains and Penalties, 
II; trials and punishments, 1 2 1-2. 

Attempts at crime, first punished by 
Star Chamber, 209. 

Australian Black-fellows, among lowest 
savages known, 9; non-religious, 
45, 46, 47, 53; recognize social 
good and evil, 47-8; loyal to social 
bond, 51; have no form of govern- 
ment, 52-3; bound by custom, 55; 
punish deliberately, 58; punish in- 
cest, 43, 70, evil-witchcraft, 73, 
adultery, 76, 113; offences rare 
among, 75-6. 

Austria, social progress in, 293-4, 296; 
centralization of, 294-5; crime in, 
2 95 - 6» 300; condemnations in, 






(419) 



420 



Index 



308-9; recent legislation in, 345- 
346. 

Babylonians — see Eastern Nations. 

Bedouin Arabs, social punishment 
among, 90, 96. 

Bheels, have no government, 89; pun- 
ish summarily, 59, 93; customs for 
laws among, 90; and evil- witch- 
craft, 98. 

Bigamy, in Church courts, 175; increas- 
ing in Germany, 317. 

Birds, punish for adulterous acts against 
nature, 27, 28, 31; degenerates 
among, 29. 

Black-fellows — see Australian Black- 
fellows. 

Blood feud, use of, 17; in India, 90; a 
social evil, 128. 

Blue Laws, 19. 

Bodo, punishments of, 95; marriage 
limits of, 97; offences rare among, 
99. 

Brazilians, punish evil- witchcraft with 
death, 86. 

Breach of trust, made crime by Star 
Chamber, 233. 

Burglary, an early felony, 215; non- 
clergyable, 217; death penalty for, 
259; in England and Wales in 19th 
century, 404. 

Bushmen of Africa, one of lowest savage 
races known, 9; punish evil-witch- 
craft, 47, 58, 73; have no tribal 
unity, 52; forbid incest, 71; offences 
rare among, 76. 

Caribs of S. America, punish incest, 80, 
84, and adultery, 113. 

Cattle -stealing, a crime, 141-2; death 
penalty for, 259; among Sicilians 
and Sardinians, 322, 323; in Eng- 
land and Wales in 19th century, 404. 

Celts, in early times the people sover- 
eign, 10, 124. 

Central Americans, despotism of, 107-8; 
crimes of, few, 109. 

Chaldeans — see Eastern Nations. 

Charles I of England, execution of, 229, 
231; impeachments in reign of, 
231-2; and Romanism, 236-7. 

Charles II of England, restoration of, 
229, 239. 

Charlemagne, Christianized Saxons by 
the sword, 388. 

Chinooks, crimes of, 79; punish evil- 
witchcraft, 88. 



Chippewayans, dread evil-witchcraft, 
85-6; theft rare among, 88. 

Church, making for unity, 130, 134-7, 
144, 387; corruption of, 182-3, 
197-8; in Spain, 344-6. (See also 
Ecclesiastical Courts.) 

Civilizations of the world, how devel- 
oped, 62-3 ; industrial character of, 
in modern times, 279, 389. 

Cnut, dooms of, 138, 143; reserved pleas 
in reign of, 159. 

Codes (see also Dooms), Germanic, our 
best records of ancient legal sys- 
tems, 8; contain little true criminal 
law, 9, 129; brought to England 
by Anglo-Saxons, 1 26-8 ; first Kent- 
ish, 127; increase of penalties in, 
131; show influence of Church, 
135; yEthelberght's, 135; Alfred's, 
137-9; New Italian Penal, 298; 
Imperial, of Germany, 343. 

Collieries Act, 269. 

Comanches, social harmony among, 87. 

Composition, substitute for blood re- 
venge, 18; favorable factor in 
struggle for existence, 19; among 
Hill tribes of India, 59, 90, 93, 94; 
among American Indians, 79; 
among primitive Aryans, 128; gives 
way to true punishment, 148; large 
sums demanded, 164. 

Congo people, treason among, 104. 

Conspiracy, under jurisdiction of Star 
Chamber, 233. 

Constitution, English, 154. 

Conventicle Act, 238. 

Corporation Act, 238. 

Corruption, made crime by Star Cham- 
ber, 233; of the Church, "182-3, 
197-8. 

Crime, dark side of progress, 2, 376, 385, 
393> 394; defined, 6, 10, 12-13, H, 
1 89, 385 ; earliest conception of, 1 1 ; 
idea of, found among all primitive 
peoples, 14; includes misdemeanors, 
15, 16; two essentials of, 20; in- 
creasing, 21, 64, 276, 280 et seq., 
333; when it will cease, 22; nature 
of, changing, 21, 224, 342; among 
animals, 24-30; scarceness of, in 
early times, 40, 68; among savages, 
41-114, 357; origin of, 55; univer- 
sal, 65; a social product, 117, 274, 
329, 377; among primitive Aryans, 
117; torts and sins become, 1 39, 143, 






Indt.x 



421 



144; decrease of, 150-3, 16S, 188, 
304-6,310, 317; of early England, 
15S-160; under Plantagenets, 160- 
2; Normans, 172; for conscience 
sake, 205-6; under Tudors, 218; 
Puritans, 237; William and Mary, 
241; Stuarts, 247-S; in 1 8th Cen- 
tury, 253-4; against the person, 
256; in 19th century, 271-2; na- 
tional development and, 300 ; in 
German cities and country, 315— 
31 S; transition periods and, 319, 
320; evolution of, 324-5; modern 
forms of, ^33 ct se Q-> 3^9 > nee d not 
always increase, 374-5, 394. 

Criminal Jurisprudence, beginnings of, 
11, 12. 14. 15; among Romans, 118- 
121; Spartans, 121 ; \thenians,i2i ; 
Slavs, 122-3; Teutons and Celts, 
123-4; early Anglo-Saxons, 126- 
145 ; effects unification of England, 
146-8; extended over king, 154; 
in reign 0/ Henry II, 157-160; of 
Henry III, 162; improvement in, 
168, 176; and Parliament, 180; of 
the Tudors, 199, 217, 222; due to 
religious development, 205-6; of 
17th century, 230; of Star Chamber, 
235; varied little from 16th to 18th 
century, 246; in France in 19th 
century, 285 ; and modern life, S^j- 
4; in Victoria's reign, 343; indus- 
trial and social, 345 ; in modern 
times, 389. (See also Codes, Dooms 
and Statutes.) 

Cromwell, and Parliament, 237; military 
despotism of, 239. 

Cruelty to animals, a 19th century crime, 
271, 273, 274, 333, 389; in France, 
288. 

Cruelty to children, 333, 389. 

Customs, for laws in early German Codes, 
7, 8, 123, 129; among savages, 39, 
41, 53 8, 61, 65; of primitive Ary- 
ans, 115. 

Dahomans, custom rules, 57; crimes and 
punishments of, 102; great loyalty 
of, 104. 

Dakotas, teach and obey ancient cus- 
toms, 50 ; murder a crime among, 
80; chiefs' slight authority, 82; in- 
cest a crime among, 83; offences of, 
rare, 8S. 

Dhimals, punishments of, 95; marriage 
limits of, 97; offences of, rare, 99. 



Dieyerie tribe, incest a crime among, 43, 
49. 

Dooms (see also Codes) of Aethelberght, 
135, 138; of Ine, 136, 138; of 
Hlothar and Eadric, 136; of Whit- 
raed, 136; of Alfred, 137-8; of 
Cnut, 138, 143; of William I., 138; 
of OfTa, 138; relating to crimes, 
142; at Wantage, 143; foundation 
of English Common Law, 157. 

Draco, and the laws of U. S., 335-7. 

Drunkenness, tried in Church courts, 
192; punished by Wm. and Mary, 
241 ; unpunished by Jas. I., 241 ; in 
19th Century, 271-2, 274, 333, 361, 
366, 389, 407. 

Dunstan, 142. 

Duelling in England, 399. 

Dyaks, regard incest criminal, 72; pun- 
ish evil-witchcraft with death, 74, 
offences rare among, 77. 

Eastern nations (Babylonians, Chal 
deans, Assyrians, Persians) early 
civilized, 115; established unpro- 
gressive equilibriums, 62 3. 

Ecclesiastical courts, immoral conduct 
punished by, 163; punishments in- 
flicted by, 175-6; abuses in, 181-2, 
191; mock justice of, 198; benefit 
of clergy and, 214-215. 

Edgar, legislation of, 140-1. 

Edmund, legislation of, 140-1. 

Edward the elder, 140. 

Edward the Confessor, a weak king, 
143; laws of, 150. 

Edward I., established English Consti- 
tution, 154; maintenance in reign 
of, 163, 166; and reform in Church 
courts, 176, 181; Parliament and, 
178. 

Edward VI., religious persecution in 
reign of, 205; treason, 207. 

Education, legislation concerning, 225, 
270, 274, 333, 362, 366, 389; ad- 
vance in, 279-280; in France, 288; 
necessity for, 341; and crime in 
Europe, 351-2. 

Elizabeth, religious persecution under, 
205; treason in reign of, 208; 
created High Commission Court, 
236. 

Embezzlement, made crime recently, 13, 
268, 233 "> m England and Wales, 
361. 

England, a leader in the world's civiliz- 



422 



Index 



ation, 22, 63, 270; increase in crime 
in, 281-3, 365; crime and national 
development in, 300, 357-8; serious 
crime decreasing in, 304, 308, 358; 
crime and education in, 321; in- 
dustrial legislation in, 345; sum- 
mary proceedings in, 366-74; age 
of maximum crime in, 375; special 
forms of crime in, 396-402; statis- 
tics of, 402-7. 

Esquimaux, have no religion or govern- 
ment, 53; punish with death, 
witches, 58, 84; regard incest as 
criminal, 79, 82-3; offences rare, 
87, 

Europe, industrial transformation of, 
279; educational transformation of, 
280; crime and progress among 
nations of, 321 ; amount of crime 
in, 341. 

Evil-witchcraft, one of three great fun- 
damental crimes, 42; criminal for 
social reasons, 45; punished by 
savage races, 58, 59, 73-75, 79, 98- 
9, 101-2, 106-7; m Anglo-Saxon 
dooms, 141, 143; in Church courts, 
J 75» I 9 I l punished by Stuarts, 242. 

Factory employees, condemned for 
crimes, 318. 

Factory legislation, 268-9, 2 7 l > 2 73> 333> 
344, 389- 

False coinage, 140. 

False witness, 141. 

Felony, defined, 158; Glanvill's list of, 
161-2; Bracton's list, 162; Coke's 
list of, 21 5 ; attempts at, made crime 
by Star Chamber, 233. 

Feudalism, established in England, 148; 
self-destruction of, 194. 

Fijians, punish evil-witchcraft, 58, 75. 

Five-mile Act, 238. 

Forcible entry, common in Tudor times, 
213; history of, 252-3. 

Forest legislation, of Normans, 170-2; 
revived by Star Chamber, 234. 

Forgery, a modern crime, 15, 16, 333, 
389; under Star Chamber, 209, 
210, 211, 233; death penalty for, 
259; English laws concerning, 
262-5 ; few prosecutions for, 266-8; 
increase of, 311, 329; in Germany, 
317; rare in Spain, 350; in Eng- 
land and Wales in 19th century, 
403, 404, 405. 

Fornication, in Church courts, 141, 175. 



France, progress toward democracy in, 
283-7; c " me m > 285-8, 300; causes 
of increase of crime in, 289, 290-3; 
serious crime decreasing in, 305-6, 
308; correction alization in, 307, 

I 313. 

! Fraud, under jurisdiction of Star Cham- 
ber, 233; laws to punish, 268; in- 
crease of, 31 1; in Germany, 317; 
a modern crime, 329, 333, 389; rare 

j in Spain, 350. 

I Fraudulent bankruptcy, first punishment 
for, 247; severe penalties with few 
prosecutions for, 266-7; increase 
of, 311; in Germany, 317; a mod- 
ern crime, 329, 389; rare in Spain, 

35°- 

Gens, mutual protective association, 7. 

Germany, a leader in the world's civili- 
zation, 63 ; the people the first legis- 
lators in, 123-4; social basis in, 
132; increase of crime in, 299, 308, 
343-4; crowding into cities in, 315, 
316; manufacturing progress in, 
318; industrial legislation in, 345. 

Germanic codes — see Codes. 

Gilbert Islanders, have no established 
government, 52; inflict death for 
incest, 71, and for evil-witchcraft, 74. 

Gonds, peaceful under foreign rule, 89; 
marriage limits of, 97; punish evil- 
witchcraft, 98; off ences rare among, 
99. 

Greeks, the people the first legislators 
among, 10; established progressive 
equilibrium, 62-3; arbitration 
among, 128. 

Hawaiians, and evil-witchcraft, 75; 
offences rare among, 78. 

Helisea, the popular assembly, 1 1 , 122. 

Henry I. of England, the " Lion of Jus- 
tice," 1 50-1 ; punishments inflicted 
by, 164, 166, 168; forest laws of, 

I I7 1 - 

j Henry II., brought reign of law to Eng- 
land, 153-4, 157, 160, 164, 166, 
169, 170; forest laws of, 171 ; and 
the clergy, 175, 

j Henry III., weakness of, 154; crime in 
reign of, 162-3. 
Henry VI., new treasons under, 181. 
Henry VII., found general disintegra- 
tion, 184, 196; good results of 
reign of, 200; destroyed class 
privileges, 201-2. 



Index 



423 



Henry VIII., and the Church, 204; and 
new treasons, 207. 

Heresy, in Church courts, 175, 191. 

High Commission Court, victims of, 
201-2 ; abolished, 229; created new 
forms of crime, 230; tyranny of, 236. 

Highway Act, 273. 

Hill tribes of India, have no regular gov- 
ernment, 54, 89; customs for laws 
among, 90. (See the various tribes.) 

Homicide, not a crime among savages, 
114, 3S8; becomes crime, 159-162, 
170; common in Norman times, 
173; in Coke's list, 174; decrease 
of, 31 1 ; decreased by medical skill, 
313; a crime of backward races, 
321 ; in Italy, Sicily and Spain, 323. 

Hottentots, observe ancient customs for 
laws, 56; summary punishments of, 
60; marriage limits of, 105; and 
evil-witchcraft, 106. 

House-breach, in dooms of Cnut, 143, 
159; under Normans, 160; under 
Tudors, 218; death penalty for, 
259; in England and Wales in 
19th Century, 403-5. 

House of Lords (see Parliament), 179; 
lords spiritual in, 182. 

House of Commons, rise of, 177-9; 
strength and weakness of, 184, 186. 

Immorality, punished by William and 
Mary, 241 ; increasing in Germany, 
316,317. 

Incendiarism, in Anglo Saxon dooms, 
140. 

Incest, punished by apes, 25; and birds, 
31 ; one of the three great primi- 
tive crimes, 41, 42; ancient tradi- 
tions opposed to, 43-5; considered 
crime by lowest savage races, 70-2; 
by American Indians, 82-4; by 
Asiatic tribes, 90, 96-8; in Africa, 
105-6; in Church courts, 175; in- 
creasing in Germany, 317. 

Individual, why punished as criminal, 
5-6. 

Individualism, and social progress, ^- 

Individuation, versus procreation, 3, 4, 
378; law providing for, 377-8, 379; 
versus social welfare. 391. 

Industrial development, and crime, 300, 
315-21,373. 

Inquisition, in Spain, etc., 354-6, 388. 

Intervention in foreign hostilities a 
crime, 399. 



Ireland, serious crime decreasing in, 305. 

Iroquois, punish evil-witchcraft, 59, 85, 
and adultery, 80, 113; punish trea- 
son with death, 82; marriage limits 
of, 83 ; crimes few among, 79, 88. 

Italy, uniheation of, 296-7; increase of 
crime in, 297, 301; education in, 
298; crime and national develop- 
ment in, 300; condemnations in, 
308-9; trend of crime in, 346-7. 

James I, and the divine right of kings, 
227-8; impeachments in reign of, 
231, 242; religious persecutions of, 
236. 

James II, despotism of, 229, 230, 240. 

Javans, punish evil-witchcraft with death, 

75- 

John, England at accession of, 146; 
Magna Charta and, 154. 

Kaffirs, crimes and punishments of, 102. 

Kalmucks, laws of, 96; marriage limits 
of, 97; offences rare among, 100. 

Kamschadales, marriage limits of, 98; 
honesty of, 100. 

Karens, hold traditional commands for 
laws, 56, 89; punish for evil-witch- 
craft, 98. 

Khonds, adhere to racial customs, 56; 
have security within group, 89, 99; 
marriage limits of, 97. 

Kindred, the basis of ancient human soci- 
ety, 6, 7 ; bond of Indian unity, 78-9. 

King, growth of the influence of, 61, 
387; in Africa, 100; brought unity 
to England, 130, 136-7, 144, 168; 
rights of, 1 3 1-2; the Fountain of 
Justice, 160; power of, at lowest 
ebb, 179; supported by Parliament, 
196; divine right of, 228, 231. 

King's Court, 154, 157-8. 

Kukis, punish trees and animals, 36; 
punish treason with death, 95; 
marriage limits of, 97 ; offences rare 
among, 99. 

Larceny, a plea of the Crown, 158, 170; 
death penalty for, 259; history of, 
in England, 396-7; in England and 
Wales in 19th century, 402-3. 

Law, of adult life, 377, 390; of family 
and of society, 378; early need of 
strong, 388. 

Libel, prosecuted by the Star Chamber, 
210, 233. 

Livery, an element of disruption, 185-6; 
laws against, not enforced, 189. 



424 



Index 



Lynch law, and instinctive social punish- 
ment, 34, 277-8; not used for minor 
offences, 404. 

Magna Charta, extended criminal law, 
154; delites in, 156; 29th clause 
of, 229. 

Maintenance, in reign of Edward I, 
163, 166; element of disruption, 
185-6; under jurisdiction of Star 
Chamber, 233; laws against, not 
enforced, 189. 

Malagasy, inflict death penalty for theft, 
60, treason, 105, and evil-witch- 
craft, 107. 

Malicious injuries to property, legisla- 
tion concerning, 256-7. 

Maoris of New Zealand, have no real 
government, 52. 

Mary, persecution in reign of, 205. 

Mayhem, in reign of Henry II, 160; in 
Bracton's list, 162; in Coke's Third 
Institute, 215; early English defi- 
nition of, 325. 

Mexicans, despotism of, 107-9. 

Mines, legislation concerning, 269. 

Misdemeanors, synonymous with crimes, 
15, 16; in 14th century London, 
190-1; in modern and in Tudor 
times, 224-6; of to-day, ^^. 

Mishmis, crimes and punishments of, 60, 
93-4; customs for laws among, 90; 
offences rare among, 99. 

Modern life, complexity of, 331-2; and 
liberty, 338-9- 

Morality, originally social, 383-4; de- 
velopment of, 384. 

Murder, among storks, 28; slowly be- 
came crime, 17, 112, 129-130, 388; 
in Anglo-Saxon dooms, 140; fine 
for, 150; in Norman times, 167, 
172-3; and the Church Courts, 
175; punished by the Star Cham- 
ber, 209; non-clergyable, 216; his- 
tory of death penalty for, 220-1 ; 
in 14th century, 253; capital pun- 
ishment caused decrease of, 260- 
1, 311; crime of backward races, 
321; in Sicily, 322-3; in Spain 
and Italy, 324; in England and 
Wales in the 19th century, 405. 

Nagas, no government among, 54; mar- 
riage limits of, 97; offences of, 
rare, 99. 

Negroes of Africa, customs of, on Gold 
Coast, 56; government of, 100; 



crimes and punishments of, 101-2; 
marriage limits of, 105; evil- witch- 
craft among, 106. 

New Caledonians, punish evil-witchcraft 
with death, 74; law of private re- 
venge among, 77; French convicts 
among, 288. 

New Guineans, punish evil-witchcraft, 
74; offences rare among, 76. 

New Zealanders, punish treason, 69; 
marriage limits of, 72; evil-witch- 
craft among, 74. 

Normans, became English, 146; made 
peace in England, 149; brought 
no written laws, 150, 157; misuse 
their power, 15 1-3; monetary sys- 
tem of, 163; forest laws of, 170-2. 

Northumberland assize rolls, 163. 

Ojibways, crimes of, 79; social unity of, 
82; inflict death penalty for incest, 
83, and for evil-witchcraft, 85; 
offences rare among, 88. 

Omahas, crimes among the, 79. 

Ostyaks, marriage limits of, 97-8. 

Outlaws, and the beginnings of legal 
punishment, 8, 12; among animals, 
26; among New Zealanders, 49; 
American Indians, 79; Mishmis 
and Santals, 94; in Africa, 102; 
among primitive Aryans, 116; in 
early German law, 133; in Anglo- 
Saxon days, 140-1; under Norman 
kings, 159, 160, 164, 171, 173. 

Papuan Islanders, offences rare among, 

77- 

Parliament, created, 154; rise of, to sov- 
ereign power, 177-8; the Good, 
179; rolls of, 180; weakness of, 
193; the tool of the king, 196; 
Henry VIII and, 207; and the 
Stuarts, 227-9; a high court of jus- 
tice, 230; under Cromwell, 237; 
and English Common Law, 240; 
and bribery, 250. 

Patagonians, evil-witchcraft among, 86. 

Peace, King's, 132-3,149,157-8; pledge, 
140; breach of the, 159; in Eng- 
land, 249; brought by modern 
weapons, 313. 

Perjury, in Anglo-Saxon dooms, 141,142; 
before Church Courts, 1 91 ; charac- 
teristic vice of the Middle Ages, 
192; made crime by the Star 
Chamber, 209, 233. 

Personation a crime, 264. 



Index 



425 



Peruriani, despotism of, 107-8; crimes 
few among the, 109. 

Phratry, 7. 

Piratical offences, not dishonorable in 
Tudor England, 213; non-clergy- 
able, 216, statutes against, 247; 
gradually became crime, 258; al- 
most obsolete, 311, 313. 

Plato, on the difficulty of establishing 
social discipline, 39. 

Police, offences in modern England, 
272-4, 364; of highways, wagons, 
wharves and docks, ^33^ established 
in England, 405, and Wales, 406. 

Population in England, and growth of 
crime, 370-3. 

Potawatomis, regard incest a crime, 83. 

Primitive man, characteristics of, ^8, 39. 

Public health act, 273. 

Punishment for crime, educational in- 
fluence of, 5, 6, 325, 375 ; by primi- 
tive society fundamentally instinct- 
ive, 9. 382; forms of, 21; among 
animals. 24-28, 30, 31; due to so- 
cial reflex action, 32; born of social 
vengeance. 35—37 ; inflicted on trees 
and animals, 36; cause of social, 55; 
often frenzied and immediate, 58- 
60; by lowest human races, 68-78; 
by Esquimaux and Indians of Amer- 
ica, 78-88; by Asiatic peoples, 89- 
100; by Africans. 101-7; by Peru- 
vians, Mexicans and Central Amer- 
•cans, 10S-1 1. 

by primitive Aryans, 115-6; by 

early Romans, 1 18-21; by Greeks, 
121-2; by Slavs, 122-3; by Teu- 
tons and Celts, 123-4; by Anglo- 
Saxons, 126 et seq.; by Norman 
kings, 164; of kings of England, 
178-9, 228-30; in Tudor times, 
225; in 17th century England, 230, 
239; for heretics, 206, 236-8, 355; 
by death for most offences, 254 et 
seq.; by transportation, 255; reac- I 
tion against severity of, 258-9; for ' 
business offences, 268; for many [ 
modern misdemeanors, 270-4, 334, J 
367-9; political, in modern France, j 
285-7, 291-2; less severe in mod- ; 
ern times, 307-8; of brigands in 
Italy, 323; successful against old ! 
and serious crimes, 310-11, 327, 
341 ; narrow sphere of, in Spain, 349. 

Quarter Sessions, records of, 219, 235; 
during reign of James I., 242; dur- 



ing the Commonwealth, 243; in 
reign of Charles II., 244; of James 
II., and of Anne, 245. 

Rape, slowly became crime, 17; put 
down by William L, 149, 168, and 
by Henry II., 160; a felony in 
Glanvill's list, 162; in Coke's list, 
215; non-clergyable, 217. 

Reformation, the social victory of the 
laity, 204-5. 

Reserved Pleas of the Crown, 159; in 
crease of, 169. 

Richard I., social progress under, 153. 

Richard II., royal power at lowest ebb 
in reign of, 179; treason under, 
181 ; and maintenance, 185. 

Riot, under jurisdiction of the Star 
Chamber, 233. 

Robbery, slowly became crime, 17, 388; 
in Anglo-Saxon dooms, 143; put 
down by William I., 149; in Glan- 
vill's list, 161 ; Norman laws against, 
166; common under Normans, 172, 
173; in ancient law, 174; felony in 
Coke's list, 215; non-clergyable, 
216; prevalence of, in 18th century 
England, 251, 253; death penalty 
for, 259; among Sicilians and Sar- 
dinians, 322, 323; in Italy and 
Spain, 323, 324; of ships in Eng- 
land, 399; in England and Wales 
in the 19th century, 404. 

Romans, early privileges of, 10, 11 ; 
established progressive equilibrium, 
62-3 ; had genius for law making, 
118; Twelve Tables of, 118-120; 
criminal legislation among, 121. 

Roman law courts, in England disap- 
pear, 127. 

Russia, law-suits in, 123. 

Sabbath-breaking, in Anglo-Saxon 
dooms, 141. 

Samoans, military laws of, 69; disap- 
prove of incest, 72; punishment 
among, 78. 

Sanitary regulations, 333, 366. 

Santals, at peace under foreign rule, 89; 
clannishness of, 94 ; marriage limits 
of, 97; offences rare among, 100. 

Sardinians, and crimes of violence, 
322-3; backward civilization of, 

347- 
Savage tribes, intensely democratic, 10, 
51-4; three great crimes of, 41-2; 
characteristics of, 65-6; have an- 
cient customs for laws, 49, 53-7, 



426 



Index 



65, 79, 90, 100. (See the various 
tribes.) 

Scotland, decrease of serious crimes in, 
309-310. 

Sicilians, and the Maffia, 322-3; back- 
ward civilization of, 347. 

Simon de Montfort, 154. 

Sins, defined, 17; punished as crimes, 
134. I39-I40, 243, 387-8. 

Slavs, primitive folk-motes of, 10, 122-3. 

Slavery and the slave trade, in England, 

213. 397- 8 - 

Smuggling in England, 398-9. 

Social anarchy, 15 1-3. 

Social education, I; two sides of, 386; 
wise and unwise, 393. 

Social progress, under Richard I., 153; 
during Norman age, ] 65 ; irregular, 
223; in the 19th century, 280; 
crime a factor in, 377; two tend- 
encies in, 386; and religious organ- 
ization, 387. 

Social prohibitions, and the multiplying 
of criminals, 377, 387, 392, 394. 

Social reflex action, 32-37; savage pun- 
ishment often due to, 57-60. 

Social selection, benefits of, 5, 6; crime 
and, 376; takes place of physical 
selection, 380-2, 385-6. 

Social standard, of right action, 20, 46- 
48, 278, 341, 381. 

Social welfare, and tendencies toward 
likeness and unlikeness to ancestors, 
38; dependent on mutual aid, 40; 
three instincts making for, 41 ; 
criminal law and, 332; and the 
Golden Rule, 378-9; takes pre- 
cedence over individual welfare, 

390, 39'- 
Spain, decreasing criminality in, 299, 
300, 310, 348; backward civiliza- 
tion of, 347-8; condemnations 
under penal code in, 349; crimes 
of violence common in, 349-350; 
ignorance in, 351-2; contraband 
trade in, 352; cause of degenera- 
tion in, 353-4, 357; Inquisition 
and Camarilla in, 355-6; hope for, 

357- 

Spartans, criminal procedure among the, 
121. 

Star Chamber, enforced statutes of 
maintenance, etc., 200 ; authority 
of, 201, 202; created new crimes, 
209, 210, 211, 230, 233; abolished, 



229; victims of, 231-2; offences 
under jurisdiction of, 233; fines and 
punishments inflicted by, 234-5. 

Statutes, of Vinodol, 122-3; unwise, of 
14th centurv England, 177; of 
provisors, of treason, of praemunire, 
180; of laborers, 186; in Year 
Books from Edward I. to Henry 
VIII., 188; against forestalling, re- 
grating and gaming, 190, 212; in 
reign of Henry VII., 196-7,201; 
of treasons, 204; concerning coin- 
age, 211; concerning bankruptcy, 
211-212; concerning injuries to 
property, usury, vagrants, game, 
212; against forcible entry, 213; 
limiting ecclesiastical jurisdiction, 
214-216; of stabbing, 246; of 
frauds, 247; severity of, in early 
1 8th century, 254, 260; milder in 
early 19th century, 261; relating 
to trade, navigation, ship owners, 
mariners and fisheries, 265; creat- 
ing misdemeanors, 271, 273; re- 
lating to military and naval affairs, 
stage and hackney coaches, 366. 

Stephen, the woeful days of, 151, 153, 168. 

Sumatrans, offences rare among, 77. 

Swearing, punished by William And 
Mary, 241; during the Common- 
wealth, 243. 

Tables, explained, 66-7; crimes and 
offences punished by lowest human 
races, 68; crimes and offences pun- 
ished in N. and S. America, 81 ; 
crimes and offences punished in 
Asia, 92; crimes and offences pun- 
ished in Africa, 103; crimes and 
offences punished by Mexicans and 
Peruvians and Central Americans, 
no; crimes and offences against 
general social welfare among Mex- 
icans and Peruvians, ill; convic- 
tions for murder and homicide, 
312; condemnations for wounding, 
314; condemnations for robbery 
and extortion, 327 : condemnations 
for business frauds and fraudulent 
bankruptcy, 328; old minor offences 
tried by courts of summary jurisdic- 
tion in England and Wales, 363; 
modern forms of minor crime, 364. 

Tacitus, on German laws, 123, 126. 

Tahitians, regard treason a crime, 69; 
punishments of, 77. 






Index 



427 



Tasmanians, had few crimes against each 
other, 58, 76; marriage limits of, 71. 

Teutonic, civilization a progressive equi- 
librium, 62-3; people sovereign in 
early times, 124. 

Theft, at' first not a crime, 17, 129, 130, 
388; probably second great tort to 
be made a crime, 112; in Anglo- 
Saxon dooms, 143, 160; in Brac- 
ton's list of crimes, 162; in Norman 
times, 173; in Coke's list of fel- 
onies, 215; of electricity, railroad 
rides, etc., 333-4, 3S9; history of, 
in England, 396-7; in England 
and Wales in the 19th century, 
402-3. 

Tierra del Fuego, bas no social life, 65. 

Todas. marriage limits of, 96; offences 
rare among, 99. 

Tongans. loyalty of the, 69. 

Torres Straits, western tribe of, marriage 
limits of, 71; few crimes among, 
76-7. 

Tort, defined, 16; primitive punishments 
for, 17; three, of importance, 112; 
evolution of the, 128-9; breaking 
of the peace a, 132; in Anglo-Saxon 
dooms, 136; becomes crime, n 2-4, 
139, 143, 155-6, 168; minor harms 
of force and fraud regarded as, 163; 
made crime in Germany, 315. 

Trade, legislation concerning, 265; 
Spanish contraband, 352; restraint 
of, 400-401. 

Treason, punished by animals, 24-5, 31 ; 
one of the three great primitive 
crimes, 41, 50; acts of, unknown 
among lowest savages, 49; consid- 
ered criminal by Tongans, Tahi- 
tians, Samoans and New Zealanders, 
69; by American Indians, 79, 82; 
by Asiatic tribes, 90, 95-8; in 
Africa, ioi; in Anglo-Saxon 
dooms, 138, 140, 143, 159; under 
Normans and Plantagenets, 161, 
166-7; in the 14th century, 1 80-1 ; 
under the Tudors, 204, 206-8; in- 
cludes counterfeiting and poison- 
ing. 211; under William and Mary, 
241; disappearance of, 311. 



I Trial by jury, evils of, 200. 

Trial by ordeal, 169-170. 

Tribal state, a military institution, 7; 
development of the, 18, 19. 

Tudor government of England, a need- 
ful despotism, 195; uplifted middle 
classes, 203; work of the, 227. 

Tupis of S. America, marriage limits of, 
83; offences rare among, 88. 

Turcomans, the State does not exist 
among the, 54; punish treason with 
death, 95. 

United States, a leader in the world's 
civilization, 20, 63; crime in, 275; 
industrial transformation in, 279; 
recent legislation in, 335-7; trusts 
and, 401. 
; Uniformity, act of, 238. 
i Vagrancy, in England in 17th century, 
242; in 19th century, 361 ; law* 
against, 399-400. 
! Vaccination Acts, 366. 
1 Veddahs of Ceylon, have no social organ- 
ization, 65; marriage limits of, 71 ; 
offences rare among, 76. 

Wales, increase of crime in, 358-360; 
new minor offences in, 363; statis- 
tics of trials in, 365 ; summary pro- 
ceedings in, 366-375; statistics in, 
402-7. 

War, acts of, 17, 189; decreasing, 340. 

Warwick, the king-maker, 183. 

William the Conqueror, dooms of, 138; 
wise despotism of, 148-150, 166, 
167-8; Domesday book and, 159, 
160; forest legislation of, 170; and 
the Church courts, 175. 

William II, firm rule of, 150, 166, 168; 
forest laws of, 171. 

William and Mary, and penalties against 
Roman Catholics, 230; reforms of r 
240. 

Witenagemot, II. 

Wyandots, punish treason with death, 
82; incest a crime among, 83; pun- 
ish evil- witchcraft with death, 85. 

Xenophon, on the difficulty of enforcing 
social discipline, 39. 

Zulus, inflict death penalty for treasoa, 
104, and for evil-witchcraft, 107. 



TABLE OK ERRATA. 



Page 2, line 1 1. For a new crime, read a new form of crime. 

Page 5, line 1. For become, read became. 

Page 31, line 6. For second, read third. 

Page 31, note. Omit the words Civilization Through. 

Page 107, last line. For 17th century, read 16th century. 

Page 120, line 6. For dint, read duit. 

Page 121, line 30. For Ephors, read Ephetae. 

Page 128, note 3. For Haphaestus, read Hephaestus. 

Page 179, line 14. For Dispensers, read Despensers. 

Page 182, line 19. For Ordainors, read Ordainers. 



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